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THE FIRST CHARTER 



THE EARLY RELIGIOUS LEGISLATI0:N' 
OF MASSACHUSETTS. 



A LECTURE 



COURSE ON THE EARLY HISTORY OF MASSACHUSETTS, 

BY MEMBERS OF THE MASSACHUSETTS 

HISTORICAL SOCIETY, 



^t tjje lLoij3cll Institute, 23oston, 



Deliveked Feb. 9, 1869. 



By JOEL PARKER. 



IS 7^ 



BOSTON: 

PRESS OF JOHN WILSON AND SON. 

1869. 
-^ 



I'l> 



0^7 



THE FIRST CHARTER 

AND 

THE EARLY RELIGIOUS LEGISLATIOIS^ 

OF MASSACHUSETTS. 



TT has been regarded as a subject of complacency, that we 
■*- know our origin, and can trace our history ; that while other 
communities seek their early history in the mists of conjecture, 
or the myths of tradition, we can trace our own, in that docu- 
mentary evidence which gives the greatest degree of certainty. 

To a considerable extent, this is true. And yet there are par- 
ticulars, essential to a right understanding of the principles upon 
which the original settlement of Massachusetts was made, re- 
specting which there has been, and now is, such a diversity and 
discrepancy of opinion, after all the discussions of two hundred 
years, and after the labors of the Massachusetts Historical So- 
ciety, for three quarters of a century, in collecting documenis 
in regard to the subject, that the Ends and Aims of the first 
settlers of Massachusetts furnish the leading topic of the present 
course of lectures, in the hope that the errors which have pre- 
vailed on that subject may be corrected, and the purposes and 
objects of the founders of the Commonwealth may be more 
clearly and generally understood. 

It is not surprising that there should be misconception upon 
this subject, when it is considered that the materials of the his- 
tory of that time are widely dispersed, and often contradictory ; 
malice manufacturing misrepresentations, prejudice engender- 
ing error, and mistake and carelessness causing fact and fiction 
to be so intermingled, that it is not seldom that the discovery of 
truth is a laborious task. 

How many persons there are in the community, who, at this 
day, suppose that the celebrated so-called " Blue Laws of Con- 



\ 



4 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

necticut" are the veritable legislation of the Puritan Colony there I 
The fact that one of them purports to provide, that " No one 
shall run on the Sabbath day, or walk in his garden or elsewhere, 
except reverently to and from meeting ; " and another that " No 
woman shall kiss her child on the Sabbath, or on a fasting day," 
— might lead to a doubt ;^ but all this is deemed consistent with 
the spirit of the time, enforcing a strict observance of that holy 
day. 

How few persons know that many of these " Blue Laws " are 
but the jokes of the wits and humorists of a subsequent age, for 
the purpose of sport and ridicule, having no enduring existence 
until Dr. Samuel Peters collecting, and probably adding to them, 
inserted, in what purported to be " A General History of Con- 
necticut," a sketch, as he said, of laws made by the independent 
Dominion of New Haven, denominated " Blue Laws " by the 
neighboring colonies, and never suftered to be printed!^ The 
whole work has been shown to be so untruthful that the appear- 
ance of these so-called " Blue Laws " there, is of itself prima 
facie evidence that they are fictitious.'^ 

If we consider what a vast mass of contradictory material has 
accumulated within the last decade, to perplex the future histo- 
rian of the late war, we shall cease to wonder that much may be 
done, even at the present day, by a diligent student of history, 
to elucidate the ends and aims of the Puritan Fathers of 
1630. 

It is because of the dispersion of material, and of the contra- 
dictory opinions which have been entertained respecting the 
rights, objects, and purposes of the founders of the Common- 
wealth, that I have deemed it not only a duty, but a pleasure, lo 
answer the call made upon me to add a small contribution, such 
as it may be, to the present attempt of the Historical Society to 
illustrate the early history of Massachusetts. 

The subject assigned to me is " the Religious Legislation of 
Massachusetts," — involving, of course, the inquiry how far any 

1 Another may furnish Congress with a model of brevity, in making up an " om- 
nibus bill," near the close of a session: "No one shall read Common Prayer, keep 
Christmas or Saints days, make mince'l pics, dance, play cards, or play on any in- 
strument of music, except tlie drum, trumpet, and jews-harp." 

■^ See Gen. Hist. Conn. 63. 

3 See Prof. Kingsley's Hist. Discourse at New Haven, 1838. pp. 3-3, 5(3, 83, 104. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 5 

such legislation was lawful under the original charter, — and 
this, in turn, depending upon the question, to what extent the 
grantees had any right of legislation, properly so called, by the 
provisions of that instrument. 

Upon this question the opinions have been much at variance, 
according as the charter has been regarded as instituting a cor- 
poration for trading purposes, or as the constitution and founda- 
tion of a government. That the grantees who settled here 
regarded it as the latter, and acted upon that construction, is 
apparent from their action at the outset, and throughout. But 
those opposed to them, contended at the time, that the former 
was its true intent and meaning, and historians have perpetuated 
that opinion. Minot, in his History of Massachusetts, says, — 

" This charter, from the omissions of several powers necessaiy 
to the future situation of the Colony, shows us how inadequate the ideas 
of the parties were to the important consequences which were about 
to follow from such an act. The Governor, with the assistants and 
freemen of the company, it is true, were empowered to make all laws, not 
repugnant to those of England ; but the power of imposing fines, mulcts, 
imprisonment, or other lawful correction, is expressly given according to 
the course of other corporations in the realm ; and the general circum- 
stances of the settlement, and the practice of the times, can leave us no 
doubt that this body-politic was viewed rather as a trading company resid- 
ing within the kingdom, than, what it very soon became, a foreign govern- 
ment exercising all the essentials of sovereignty over its subjects." ^ 

He proceeds to speak of divers laws as having been made by 
the grantees, of their own motion and without any authority 
under the charter, and, after referring to the force of habits and 
prejudices, adds, — 

" But such was the force of these habits and prejudices, and so prone 
are mankind to place unlimited confidence in their government, when un- 
provoked by the usurpation and abuse of power, that the people of Mas- 
sachusetts may be said to have submitted to a system of laws, by whicii the 
freedom of action was abridged, and to have vohmtai-ily yoked themselves 
to an ecclesiastical autliority, by which the rights of conscience lost, for a 
time, the very principles that their emigration had avowed." 

Bancroft, who aspires to be the historian of the United 
States, writes, — 

1 Sec Minot, p. 19. 



6 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

" The charter, which bears the signature of Charles I.,^ and which was 
cherished for more than half a century as the most precious boon, estab- 
lished a corporation, like other corporations within the realm. The asso- 
ciates were constituted a body-politic by the name of the Governor and 
Company of the Massachusetts Bay in New England. The administra- 
tion of its affairs was intrusted to a governor, deputy, and eighteen assist- 
ants, who were to be annually elected by the stockholders or members of 
the corporation. Four times a year, or oftener if desired, a general 
assembly of the freemen was to be held ; and to these assemblies, which 
were invested with the necessary powers of legislation, inquest, and super- 
intendence, the most important affairs were referred. No provision re- 
quired the assent of the King to render the acts of the body valid ; in his 
eye it was but a trading corporation, not a civil government ; its doings 
were esteemed as indifferent as those of any guild or company in Eng- 
land; and if powers of jurisdiction in America were conceded, it was only 
from the nature of the business in which the stockholders were to en- 
cafre." — "The charter designedly granted great facilities for colonization. 
It allowed the company to transport to its American territory any persons, 
whether English or foreigners, who would go willingly, would become 
lieges of the English king, and were not restrained ' by especial name.' It 
empowered, but it did not require the Governor to administer the oaths 
of supremacy and allegiance ; yet the charter, according to the strict rules 
of legal interpretation, was far from conceding to the patentees the privi- 
lege of freedom of worship. Not a single line alludes to such a purpose ; 
nor can it be implied by a reasonable construction from any clause." 

He says further, — " The political condition of the colonists was not 
deemed by King Charles a subject worthy of his consideration. Full 
legislative and executive authority was conferred not on the emigrants, 
but on the company, of which the emigrants could not be active members, 
so long as the charter of the corporation remained in England. The 
associates in London were to establish ordinances, to settle forms of gov- 
ernment, to name all necessary officers, to prescribe their duties, and to 
establish a criminal code. Massachusetts was not erected into a province, 
to be governed by laws of its own enactment ; it was reserved for the 
corporation to decide what degree of civil rights its colonists should 
enjoy." 

Again, — " The charter on which the freemen of Massachusetts succeeded 
in erecting a system of independent representative liberty, did not secure 

1 Tliis, by the way, is a mistake in the outset. Charles Cajsar, the Master in 
Chancery, before wlioni Governor Cnulock took the oath of office, and whose name 
is appended to a certificate of tliat fact, at the bottom of the charter, was not 
Charles I. 



/ 



\ / 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 7 

to them a single privilege of self-government ; but left them, as the Vir- 
ginians had been left, without one valuable franchise, at the mercy of a 
corporation within the realm. This was so evident, that some of those 
who had ah-eady emigrated, clamored that they were become slaves.^ 

" It was equally the right of the corporation to establish the terras on 
which new members should be admitted to its freedom. Its numbers could 
be enlarged or changed only by its own consent. 

" It was perhaps implied, though it was not expressly required, that 
the affairs of the company should be administered in England ; yet the 
place for holding the courts was not specially appointed. What if the 
corporation should vote the emigrants to be freemen, and call a meetino- 
beyond the Atlantic ? What if the Governor, deputy, assistants, and free- 
men should themselves emigrate, and thus break down the distinction 
between the colony and the corporation ? ^ The history of Massachiisetts 
is the counterpart to that of Virginia : the latter obtained its greatest lib- 
erty by the abrogation of the charter of its company ; the former by a 
transfer of its charter, and a daring construction of its powers by the suc- 
cessors of the original patentees." ^ 

Now I may remark that it is quite possible Charles I. was 
not very careful to scrutinize the effect of the powers which he 
assumed to confer by the charter. 

The lands granted (with a vast extent of territory besides, 
claimed by the Crown) were, notwithstanding the glowing ac- 
counts of some navigators respecting the fisheries, deemed of 
such small importance that they came very near falling entirely 
under the jurisdiction of other governments, from the mere neg- 
lect of the English Government to take possession ; and so far 
as any direct independent action of the Crown was concerned, 
such would have been their fate. The patent to the Great 
Council of Plymouth, procured by individuals, probably saved 
them as a British possession. 

And along with this supposition of a lack of value in the ter- 
ritory, King Charles could not have been ignorant of the general 
character, political and religious, of the proposed emigrants, and 
might well have considered that it was quite immaterial what 

1 These were the "old planters," — squatters, before the charter was granted. 

2 K they might do so, it would appear that the charter did secure to them some 
privileges of self-government, and that they were not necessarily at the mercy of a 
corporation within the realm. 

3 See Bancroft, vol. i. pp. 342-345. 



8 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

powers were given to the grantees, to be exercised on the other 
side of the Atlantic, if thereby England would be rid of a class 
of people imbued with notions of republican freedom, and likely 
to be very troublesome as nonconformists, if they remained 
there. 

If he could have cleared his kingdom of many more of a simi- 
lar character, by a like process, he would have saved his crown 
and his life. 

On the other hand, it is possible that the grantees were not 
fully aware of the extent of the powers conferred by the charter 
as they subsequently construed its provisions ; but this admits 
of grave doubt. We may safely infer that the original draft was 
made by counsel employed by the applicants, and submitted to 
the crown lawyers for examination. It is not to be supposed 
that the crown officers would undertake the duty of preparing a 
document which had so much of a private character attached to 
it ; and as it bears upon its face evidence that it was very care- 
fully drawn up, apparently, so as to confer power without giving 
offence, we can hardly make a presumption that none of the 
grantees understood its full scope and effect. It is quite clear, 
however, that they did not anticipate such an influx of emigra- 
tion that the very success of their experiment, so far as popula- 
tion was concerned, should have been its overthrow in some of 
its most important religious aspects. 

But the question is not so much what the King, or other 
persons, may have supposed respecting the subject, as what 
provisions were contained in the charter. 

Whatever rights the charter purported to grant, vested lawfully 
in the grantees. 

The title to unoccupied lands belonging to Great Britain, 
whether acquired by conquest or discovery, was vested in the 
Crown. The right to grant corporate franchises was one of the 
prerogatives of the King. And the right to institute and to 
provide for the institution of colonial governments, whether by 
charter, proprietary grant, or commission, was likewise one of 
the prerogatives. Parliament had then nothing to do with the 
organization or government of colonies. 

The confirmation, therefore, in the charter, of the grant of the 
lands from the Council of Plymouth (which derived title from 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 9 

the grant of James I., and which could grant the lands, but could 
not grant nor assign powers of govermiient), with a new grant, 
in form, of the same lands, gave to the grantees a title in socage ; 
substantially a fee-simple, except that there was to be a rendition 
of one-fifth of the gold and silver ores. The grant of corporate 
powers, in the usual form of grants to private corporations, con- 
ferred upon them all the ordinary rights of a private corporation, 
under which they could dispose of their lands, and transact all 
business in which the company had a private interest. And the 
grant of any powers of colonial government, embraced in the 
charter, was valid and effective to the extent of the powers 
which were granted, whatever those powers might be ; the whole, 
as against the corporation, being subject to forfeiture for suffi- 
cient cause. 

The grant and confirmation of the lands, and the grant of 
mere corporate powers for private purposes, were private rights, 
which vested in the grantees ; and which the King could not 
divest, except upon some forfeiture regularly enforced. Upon 
such forfeiture, the corporation would be dissolved, and all of 
the lands belonging to it would revert, in the nature of an 
escheat. But this would not affect valid grants previously 
made by it. 

The grant of power to institute a colonial government, being 
a grant not for private but for public purposes, may have a 
different consideration. Whether by reason of its connection 
with the grant of the lands and of ordinary corporate powers, it 
partook so far of the nature of a private right, that it could not 
be altered, modified, or revoked, except on forfeiture, enforced by 
process; or whether this part of the grant had such a public 
character, that the powers of government were held subject to 
alteration and amendment; — is hardly open to discussion. At 
the present day it is held, that municipal corporations, being for 
public uses and purposes, have no vested private rights in the 
powers and privileges granted to them, but that they may be 
changed at the pleasure of the government. That principle 
seems to be equally applicable to a grant of colonial powers of 
government ; and the better opinion would seem to be, that it was 
within the legitimate prerogative of the King, at that day, to 
modify, and even to revoke, the powers of that character which 



10 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

had been granted by the Crown, substituting others appropriate 
for the purpose.^ 

If the King had assumed to revoke the powers of government 
granted by the charter, without substitution, or if he had im- 
posed any other form of government, by which the essential 
features of that which was constituted under the charter would 
have been abrogated, it might have been an arbitrary exercise of 
power, justifying any revolutionary resistance which the Colony 
could have made. But the Crown, under the then existing laws 
of England, must have possessed legally such power over the 
Colony as the legislature may exercise over municipal corporations 
at the present day. The charter, so far as the powers of govern- 
ment were concerned, could not be treated as a private contract. 

The charter was originally the only authority for the govern- 
ment of the territory embraced in it. The Council at Plymouth, 
in the county of Devon, never attempted to exercise powers of 
government over the Colony of Massachusetts ; and there was 
no compact or agreement to form a government. The grantees 
professed, in all they did, to act under the charter, and, as they 
contended, according to the charter. 

We are to look to the terms of the charter, therefore, and to a 
sound construction of its provisions, to ascertain what rights of 
legislation, religious or otherwise, were possessed by the gran- 
tees. 

The charter bears date March 4, 1628 [29]. 

From a careful examination of it, I have no hesitation in 
maintaining five propositions in relation to it. 

1. The charter is not, and was not, intended to be an act for 
the incorporation of a trading or merchants' company merely. 
But it was a grant which contemplated the settlement of a 
Colony, with power in the incorporated company to govern that 

1 If this distinction between public and private corporations, well settled at the 
present time, was not then recognized, it is not because there has been a change of 
principle since that period ; but because the principles which govern these two de- 
scriptions of corporate rights were not then well developed ; and hence the claim of 
the Crown to power over both public and private rights, and the claims of the colo- 
nists under their charter, without any distinction between the two. When a right 
application is made of tliis principle to the colonial history, it will show that the 
complaints of the colonists of infringement of their charters were not all well 
founded. 



CHAETER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 11 

Colony, — This is shown from its whole structure, in the provis- 
ions relating to government, which I shall specify particularly 
under the other propositions, and moreover in the power given — 

" to the Governor and Company, and their successors," — "' that it shall 
and may be lawful to and for the chief commanders, governors, and 
officers of the said company for the time being who shall be residents in 
the said part of New England in America by these presents granted, and 
others there inhabiting, by their appointment and direction, from time to 
time, and at all times hereafter, for their special defence and safety ; to en- 
counter, expulse, repel, and resist, by force of arms and by all fitting ways 
and means whatsoever, all such person and persons, as shall at any time 
hereafter attempt or enterprise the destruction, detriment, or annoyance 
to the said plantation or inhabitants, and to take and surprise by all ways 
and means whatsoever, all and every such person or persons with their 
ships, armor, munition, and other goods, as shall in hostile manner in- 
vade, or attempt the defeating of the said plantation, or the hurt of the 
said company and inhabitants." 

Here is a complete grant of the power to make defensive war, 
without any order from, or recourse to, the Crown ; and, of 
course, according to the judgment of the company and its 
officers. 

2. The charter authorized the establishment of the govern- 
ment of the Colony within the limits of the territory to be 
governed, as was done by the vote to transfer the charter and 
government. 

I am aware that Mr. Justice Story, in his Commentaries on 
the Constitution, says, " It is observable that the whole structure 
of the charter presupposes the residence of the company in 
England, and the transaction of all its business there." ^ But 
that position cannot be maintained. I venture to say, that there 
is no provision in the charter, which either expressly, or by 
implication, presupposes such residence. On the contrary, if it 
cannot be asserted that the whole scope of the charter com- 
templates the establishment of the government within the 
Colony, it will be found that it contains provisions which it 
would have been next to impossible to execute, except by a 
transfer of the charter and government to the place to be 
governed. 

1 1 Story's Com. on the Const. § 64. 



12 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

The charter provides that there shall, or may be, four general 
assemblies, which shall be styled and called the four great and 
General Courts of the company, in which, in the manner there 
provided, the Governor, or deputy, and such of the assistants and 
freemen of the company, as shall be present, " shall have full 
power and authority to choose, nominate, and appoint such, and 
so many others, as they shall think fit, and that shall be willing 
to accept the same, to be free of the said company and body, 
and them into the same to admit; and to elect and constitute 
such officers as they shall think fit and requisite, for the ordering, 
managing, and despatching of the affairs of the company." 

Is it possible to believe that none of the emigrants, — the 
very men most interested in the administration of the affairs of 
the company, — were to be admitted as freemen, so as to have 
a voice ? It would seem much more probable that it should have 
been intended they should form a majority. But how were 
they to attend the four General Courts, if these were held in 
England ? 

The clauses in relation to the election and removal of officers, 
and to the administration of the oaths of office, are still more 
significant. 

" Yearly, once in the year," namely, the last Wednesday in 
Easter term, the Governor, deputy governor, and assistants, and 
all other officers of the company, were to be " newly chosen for 
the year ensuing," in the General Court, or assembly, to be held 
for that day and time, by the greater part of the company, for 
the time being, then and there present. And in case the Gov- 
ernor, deputy governor, any of the assistants, or any other of the 
officers to be appointed for the company, should die, or be re- 
moved (power being given to the company to remove for any 
misdemeanor or defect), it was made lawful for the company, in 
any of their assemblies, to proceed to a new election in the place 
of the officer so dying or removed ; " and immediately upon and 
after such election," the authority, office, and power, before given 
to the officer removed, were to cease and determine. 

By another provision of the charter, the Governor, deputy 
governor, assistants, and all other officers to be appointed and 
chosen, were required before they undertook the execution of 
their respective offices, to take an oath for the faithful perform- 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 13 

ance of their duties. The Governor was to take the oath of 
office before the deputy governor, or two of the assistants ; and 
the deputy governor, and assistants, and all otlier officers chosen 
from time to time, were to take their oaths before the Governor 
of the company. 

It is readily seen that these provisions of the charter could be 
conveniently executed, if the company was within the Colony, 
and the government administered there. And a very slight 
examination shows how nearly impossible it would be to ex- 
ecute them, if the Colony was to be governed by a company in 
England. In the case of the death of the incumbent of an 
office, the duties of which were to be performed in the Colony, 
it would take a month for the intelligence of the decease to 
reach the company in England, and at least a month or six 
weeks more, ordinarily a much longer time, for a notice of the 
new election to reach the Colony ; during which time, there 
would be no regular officer to perform the duties. 

Is it answered that provision could be made by law, that in 
such case the duties should be performed by some other officer ? 
That will not apply to the case of a removal, as it could not be 
known that the officer was removed, until a month or six weeks 
after the removal was made, and yet the office would be vacated 
at the time of the removal by the company in England ; the 
officer performing acts supposed to be official, but which would 
be void. 

The provision in relation to the oaths of office would be more 
nearly impracticable. All the officers, as we have seen, whether 
newly elected at an annual election, or to fill vacancies occasioned 
by death or removal, were to take the oath of office before they 
could execute the duties of the office; so that if the company 
remained in England, and the General Courts were held there, 
all the officers chosen for the managing and despatching of the 
affairs of the company, who resided in the plantation, and most 
of them must be there, would have to go to England to take 
their oaths of office, before they could execute their offices ; or, 
the Governor would be obliged to be in the plantation to admin- 
ister the oaths there, after notice who were elected ; and after 
each animal election, the deputy governor, or two assistants, 
must first administer the oath to him, before he could go to the 



14 CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 

plantation, or if he were there, must go themselves to the planta- 
tion to find him, and administer the oath there, before he could 
administer the oaths to others. Such a state of things would 
furnish too great a temptation, in any but a Puritan community, 
to some other oaths than oaths of office. 

It has been suggested that in the clause authorizing the 
General Court to make laws, there is a provision which would 
authorize a law, by which other persons than the Governor, 
deputy governor, or assistants, might administer oaths ; and this 
ijiay be true in relation to oaths to be administered to any 
officers, other than " all other officers to be hereafter chosen as 
aforesaid, from time to time," by the company, although the 
provision refers more particularly to laws prescribing the forms 
of oaths than to the administration of them, as will be seen by a 
reference to the provision itself. 

If, however, it is assumed that it conferred power to make 
laws for the administration of oaths by such persons as the laws 
of the Colony should prescribe, it must be limited to officers 
other than those chosen by the company. It could not be con- 
strued to authorize a law providing for the administration of 
oaths to the Governor, deputy governor, assistants, or to " all 
other officers to be appointed and chosen as aforesaid " (that is, 
to all officers of the company), otherwise than according to the 
special provisions of the charter already considered prescribing 
before whom they should take their oaths ; for, thus construed, it 
would give a power to make laws contradictory to the provisions 
of the charter itself, which would be a construction entirely in- 
admissible. 

No general provision authorizing the making of laws, " for the 
settling of the forms and ceremonies of government and magis- 
tracy," " for naming and styling of all sorts of officers, both 
superior and inferior," for " setting forth the duties, powers, and 
limits, of every such office and place, and the forms of such 
oaths warrantable by the laws and statutes of this our realm of 
England, as shall be respectively ministered unto them," &c., 
can operate to abrogate the special provisions which precede it ; 
— authorizing the election of officers, annual elections, appoint- 
ments in case of death and removal, and providing that " the 
newly elected deputy governor, and assistants, and ail other 



CHARTER AND RELICxIOUS LEGISLATION OF MASSACHUSETTS. 15 

officers to be hereafter chosen as aforesaid, from time to time, 
shall take the oaths to their places respectively belonging before 
the Governor of the company for the time being." 

Who, then, were the other officers to be hereafter chosen, as 
aforesaid, from time to time, respecting whom it was specially 
provided that they should take their oaths before the Governor ? 
Certainly not merely the secretary, treasurer, and other persons, 
who should be directly connected with the meetings of the com- 
pany. If the King had undertaken to plant a Colony, to prescribe 
the laws, and to appoint the officers; all the officers, — judges, 
sheriffs, attorney-general, &c., appointed by him, would have 
been officers of the Crown. When, instead of this, he com- 
mitted the planting, ruling, appointing officers, &c., to the com- 
pany; the judges, sheriffs, justices of the peace, and other officers 
appointed directly by the company, were officers of the com- 
pany, as much so as the secretary and treasurer; and, as 
such, they were among the "other officers," who were required 
by the charter, to take their oaths before the Governor. Legis- 
lation providing for the administration of oaths to officers 
not appointed by the company might be valid ; as would be 
provisions for the administration of oaths to jurymen, wit- 
nesses, &c. 

If we infer that there was no supposition that the plantation 
would become so large as to require a great force of officers, it 
does not change the construction of the charter. 

I admit that there were some proceedings which tend to show, 
that the requirements of the charter in respect to oaths were 
not fully understood by the members of the company generally. 
At the General Court in England, on the 30th April, 1629, 
Bndicott, who had come over as governor of the plantation, 
before the charter was granted, was elected or confirmed as 
governor, and a deputy governor and council were appointed; 
and it was ordered, that the Governor, deputy governor, and 
council then in New England, should make choice of a sec- 
retary and other needful officers, and should frame and ad- 
minister to them such oaths as they should think good. But 
this was very soon after the charter was procured, and while its 
provisions were imperfectly understood, as is evident from the 
fact that, at the same meeting, it was ordered, that Governor 



16 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

Endicott, or his deputy, and the council, having taken their 

oaths, — 

" shall have full power and authority, and they are hereby authorized, by 
power derived from His Majesty's letters patent, to make, ordain, and 
establish all manner of wholesome and reasonable orders, laws, statutes, 
ordinances, directions, and instructions, not contrary to the laws of the 
realm of England, for the present government of our plantation, and the 
inhabitants residing within the limits of our plantation, a copy of all which 
orders is to be sent to the company in England." ^ 

It is quite clear, that those who passed this vote to confer upon 
the administrative government in the plantation — "by power," 
as they alleged, " derived from His Majesty's letters patent" — 
full authority to make laws, while the company to which the 
power was granted existed in England, had not an exact compre- 
hension of the nature and character of the charter ; for this vote 
assumed, that the power to make laws was assignable, or rather 
that it might be duplicated. Whether there were those who had 
•a better knowledge, but thought that some such measure was 
necessary until the charter and government could be transferred, 
cannot now be known. 

The attempt at two governments, in a modified form, con- 
tinued some time afterwards. 

" It was thought fit, in making the transfer, that the government of per- 
sons should be held in the plantation, and the government of trade and 
merchandise should be in England." 

These proceedings occasioned the charge in the quo warranto, 
in 1635, that they held two councils, — one in England, and the 
other in America. 

Authority was also given by the charter to the Governor, 
deputy governor, or any two assistants, to administer " the oath 
and oaths of supremacy and allegiance, or either of them, to all 
and every person and persons, which shall at any time or times 
go to or pass to the lands and premises " granted, to inhabit the 
same. 

Persons, not subjects, might go with the assent of the com- 
pany. Suppose there had been a disposition to administer 
these oaths, and all persons had been required, in conformity 

1 See Mass. Records, vol. i. pp. 38, 361, 386 ; Hazard's Coll., vol. i. pp. 256, 268. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 17 

with this authority, to take them : were persons proposing to 
emigrate, to seek, in England, for the officers authorized to 
administer them, and take the oaths before embarkation ? Were 
strangers, — foreigners, — expected to do so? 

The absurdity of provisions intended to operate in the manner 
stated, more especially in relation to removals and the adminis- 
tration of the oaths of office, furnishes plenary evidence that no 
construction was intended confining the company to England ; 
and we are led, therefore, to the conclusion, that the transfer 
was not only beyond exception, but that it was perhaps con- 
templated by some of the parties interested, when the charter 
was granted. 

The intrinsic difficulty of making laws for and governing 
such a colony by a corporation having its locality in England, 
would seem to be so apparent as to be evidence respecting the 
intent, and the true construction of the charter. 

It was necessarily within the scope of the charter, that the 
grantees should occupy and cultivate the lands confirmed and 
granted by it, in the place where they were situated. It was 
equally, if not necessarily, within its scope, to exercise the private 
corporate privileges which related to those lands, in the place of 
their location, — and to institute and administer the political 
government, over the persons settled upon them, in the place 
which they inhabited. 

There Is also strong extraneous evidence to show, that there 
must have been a supposition, on the part of some of those con- 
cerned, that the charter and government would be transferred at 
an early day. Before the charter was obtained, and, it seems prob- 
able, during the time in which efforts were making to procure it, 
the grantees, under the grant from the Council of Plymouth, had 
adopted measures for the settlement of the plantation. Endicott 
embarked in June, 1628 ; arriving in September, with power to 
manage their affairs, and it appears with the title of Governor. 
A letter was addressed to him and others, April 17, 1629, inform- 
ing them that the charter was obtained, confirming him as 
governor, and joining seven persons with him as a council. 
Then came the proceedings of April 30th already referred to. 
The experience of less than a year may have shown the neces- 
sity of having oaths of office administered in the plantation, and 



18 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

of having the laws made where they were to be administered, 
and thus have led to the orders of that date, without much 
study of the charter itself, by those members of the company 
who had not been actively engaged in procuring it ; while those 
who better understood its provisions, in view of the probable 
transfer of the charter and government in a short time, did not 
deem it expedient to interpose objections. 

At a General Court under the charter. May 13, 1629, Cradock 
was elected governor of the company for the year ensuing.^ 
But at a court held July 28th, " Mr. Governor read certain prop- 
ositions, conceived by himself; viz., that for the advancement of 
the plantation, the inducing persons of worth and quality to 
transplant themselves and families thither, and for other weighty 
reasons therein contained, to transfer the government of the 
plantation to those that shall inhabit there, and not to continue 
the same in subordination to the company here, as it now is." 
Those present were desired privately and seriously to consider 
of it, and produce their reasons at the next General Court, and 
in the mean time to carry the business secretly that it be not 
divulged.^ 

This was, doubtless, in connection with the negotiations with 
Winthrop and others, to come over and settle. But following 
so closely upon the grant of the charter, and taken in connection 
with its provisions, the inference is strong, I think, that the mat- 
ter had been previously agitated among some of those interested. 

At a General Court held August 29th, the reasons pro and 
contra having been heard, it appeared, by a hand vote, that it 
was the general desire and consent of the company, that the 
government and plantation should be settled in New England, 
and it was ordered accordingly.'^ 

Other evidence is derived from the fact, that no objection 
appears to have been made by the King or his Council, which 
strengthens the inference that the crown lawyers, who examined 
the charter, must have supposed that such a movement was 
probable. 

Mr. Justice Story says, " The power of the corporation to make the 
transfer has been seriously doubted, aud even denied. But the boldness 

1 Mass. Records, vol. i. p. 40. 2 Mass. Records, vol. i. p. 49. 

-^ Mass. Records, vol. i. p. 51. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 19 

of the step is not more striking than the silent acquiescence of the King 
in permitting it to take phvce." ^ 

If, however, we suppose that some of his councillors, when 
the charter was examined, saw that this might be done, the 
wonder ceases.^ 

Upon petition of Sir Christopher Gardiner, Sir Ferdinando 
Gorges, and Captain John Mason, growing in part, doubtless, 
out of Gardiner's grievances, and in part, probably, out of the 
conflict of title in the others, but representing " great distraction 
and much disorder " in New England, the matter was referred 
to the Privy Council, and examined by a committee, who heard 
the complainants, and divers of the principal adventurers. 
Whereupon, without determining certain contested matters of 
fact, resting to be proved by parties that must be called from the 
Colony, the Council, Jan. 19, 1632, " not laying the fault or 
fancies (if any be), of some particular men, upon the general 
government or principal adventurers," ^ thought fit to declare 
" that the appearances were so fair, and hopes so great, that the 
country would prove both beneficial to this kingdom, and prof- 
itable to the particulars, as that the adventurers had cause to go 
on cheerfully with their undertakings ; and rest assured that if 
things were carried as pretended when the patents ivere granted, 
and accordingly as hy the patent is appointed, his Majesty would 
not only maintain the liberties and privileges heretofore granted, 
but supply any thing farther that might tend to the good govern- 
ment, prosperity, and comfort of his people there, of that 
place," 4 This shows, conclusively, not only that no objections 
were then taken by the Privy Council to the transfer of the 
charter and government, but that none were taken to the general 
exercise of the powers of a colonial government, in the manner 
in which the grantees were exercising them. 

Winthrop, in his History of New England, referring to the 
first intelligence of this proceeding, says, " The principal matter 

1 1 Story's Com., § 05. 

■^ These matters are not material to the determination of the question whether 
tlie transfer was lawfully made. But the inference that it was originally con- 
templated seems so strong, that I have deemed it expedient to call attention to the 
facts. 

3 Hutch. Coll. Papers, p. 53. 

* Hutch. Coll. Papers, p. 54; Chalm. Annals, vol. i. p. 15-3; Neal's Hist., p. 154. 



20 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

they had against us, was the letters of some indiscreet persons 
among us, who had written against the church government in Eng- 
land." ^ But in a subsequent paragraph, having then, it is to be pre- 
sumed, received a copy, he speaks of the petition, as " accusing 
us to intend rebellion, to have cast off our allegiance, and to be 
wholly separate from the church and laws of England; that our 
ministers and people did continually rail against the State, and 
church, and bishops there," &c. Sir Richard Saltonstall, Mr. 
Humfrey, and Mr. Cradock were called before a committee 
of the Council, and a hearing was had. Winthrop says fur- 
ther, that — 

" The king, when the matter was reported to him by Sir Thomas 
Jermyn, one of the Council, who spoke much in commendation of the 
Governor, both to the lords, and afterwards to his Majesty, said that he 
would have them severely punished, who did abuse his governor and the 
plantation ; that the defendants were dismissed with a favorable order for 
their encouragement, being assured by some of the Council, that his 
Majesty did not intend to impose the ceremonies of the Church of Eng- 
land upon us, for that it was considered, that it was the freedom from such 
things that made people come over to us." ^ 

There were subsequent complaints from two classes of per- 
sons, — those who had adverse territorial claims, and those who 
had experienced the discipline of the Colony. Mason was par- 
ticularly active, insomuch that Winthrop appears to have been 
resigned to the providence of God, which, in 1635, " in mercy, 
taking him away," terminated his efforts to overthrow the 
government.^ 

In February, 1633-34, on the understanding of the trans- 
portation of great numbers to New England, among them 
" divers persons known to be ill affected, discontented not only 
with civil, but ecclesiastical government here, whereby such 
confusion and distraction is already grown there, especially in 
point of religion, as, beside the ruin of the said plantation, 
cannot but highly tend to the scandal both of Church and State 
here," there was an order of the King in Council to stay divers 
ships then in the Thames, ready to set sail, with an order that 
the masters and freighters should attend the Council, and a 

1 Winthrop's Hist., vol. i. p. 100. 2 ib., p. 103. 3 jb., p. 187. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 21 

further order, " that Mr. Cradock, a chief adventurer in that 
plantation, now present before the board, should cause the letters 
patent for the plantation to be brought before this board." ^ 

The ships were permitted to sail, on representations respecting 
the commercial interests which would be affected by their deten- 
tion ; and it would seem from what followed, that Cradock 
answered, that the charter was in the hands of Winthrop. 

Laud became Archbishop of Canterbury in 1633 ; and his in- 
fluence may perhaps be traced in this action of the Privy 
Council. Winthrop attributes it to " the archbishops and others 
of the Council ; " and supposes that the intention was " to call 
in our patent." ^ 

Shortly afterwards, on the 28th of April, 1634, a commission 
for regulating plantations, was issued to the Archbishop of 
Canterbury, the Lord Keeper, and others, most, if not all, of them 
members of the Privy Council, giving them, among other things, 
power of protection and government over the colonies planted 
and to be planted, " power to make laws, ordinances, and con- 
stitutions, concerning either the State pvhlio of the said colonies, 
or utility of private persons, and their lands, goods," &c. ; " and 
for relief and support of the clergy ; " " and for consigning of con- 
venient maintenance unto them hj tithes,''^ &c. ; power to inflict 
punishment on offenders by imprisonment and other restraints, 
or by loss of life, or members ; power to hear and determine all 
complaints, whether against the whole colonies, or any gov- 
ernor, or officer. And then comes a clause, the intent of which 
may readily be discovered from what followed. 

" And we do, furthermore, give unto you, or any five or more of you, 
letters patents, and other writings whatsoever, of us or of our royal pre- 
decessors granted, for or concerning the planting of any colonies, in any 
countries, provinces, islands, or territories whatsoever, beyond the seas ; 
and if, upon view thereof, the same shall appear to you, or any five or 
more of you, to have been surreptitiously and unduly obtained, or that 
any privileges or liberties therein granted, he hurtful to us, our Croivn or 

1 Hutch. Hist., vol. i. p. 33. From the order in wliich these proceedings are stated 
in Hubbard and Hutchinson, it would appear, that the King's expression of satisfac- 
tion was at the close of this hearing in 1633; but the dates in Winthrop's History 
show that to have been the year previous. Hubbard's dates in regard to these 
matters are not trustworthy. 

- Winthrop, vol. i. p. 135. 



22 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

prerogative royal, or to any foieign princes, to cause the same, according 
to the laws and customs of our reahn of England, to be revoked ; and to 
do all other things which shall be necessary, for the wholesome govern- 
ment and protection of the said colonies and our people therein abiding." ^ 

It appears from a recital in a subsequent order, made in 1638, 
that the Commissioners, in 1634 or 1635, gave an order " to 
Mr. Cradock, a member of that plantation, to cause the grant or 
letters patent of that plantation (alleged by him to be there 
remaining in the hands of Mr. Winthrop) to be sent over hither." 

In pursuance of the project for a general governor for the 
whole of New England, Gorges was directed to confer with the 
Council at Plymouth, to resolve whether they would resign their 
patent; and in April, 1635, the Duke of Lenox and others of 
that company, supposed to be acting in Gorges' interest, pre- 
sented to the Lords of the Council ^ a petition, proposing to 
surrender ; but praying, among other things, that the patent for 
the plantation of the Massachusetts Bay might be revoked. 

Under the direction of the Commissioners, Sir John Banks, 
the Attorney-General, brought a quo warranto to enforce a for- 
feiture, in 1635. The process seems to have been founded upon 
an assumption, that the company had no rights whatever. 
There were fourteen allegations of usurpation ; denying the 
defendants' claim of title to land, their claims to be a corpora- 
tion, and to have the sole government of the country, &c. ; 
and alleging that they made laws and statutes against the laws 
of England. There was no allegation that they had unlawfully 
established the government within the colony ; but among the 
usurpations set forth was, — 

" to keep a constant council in England of men of their own company and 
choosing, and to name, choose, and swear certain persons to be of that 
council; and to keep one council, ever resident in New England, chosen 
out of themselves, and to name, choose, and swear whom they please to 
be of that council." 

Also, to have several common seals.^ There was no service in 
the Colony ; * but service was made upon several of the grantees 

1 Hutch. Hist. (App.) vol. i. p. 502. 

2 The Commissioners for Foreign Plantations are often so called, and there is 
danger of confusion, unless care is taken to distinguish their acts from those of the 
Privy Council. 

3 Hutch. Coll. Papers, p. 101. 4 Hutch. Hist., vol. i. p. 86. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 23 

who were in England, each of whom, except Cradock, pleaded 
severally that he never usurped any of said liberties, and dis- 
claimed. Against them, there was judgment that they should 
not for the future intermeddle with any of said franchises, but 
should be for ever excluded from the use of the same. Cradock 
appeared, and then made default ; upon which there was judg- 
ment that he should be convicted of the usurpation charged, and 
that the liberties, privileges, and franchises should be taken and 
seized into the King's hand. The process was pending about 
two years, and there was judgment of outlawry against the 
rest of the patentees.^ But this judgment availed nothing. 
Jones and Winnington, attorney and solicitor general, in 1678, 
concurred in an opinion, " that neither the quo warranto was so 
brought, nor the judgment thereupon so given, as could cause a 
dissolution of the charter." ^ The particular reasons were not 
stated. But we may well suppose the reason to have been, that 
there was no service on the corporation, nor on any of the 
members in Massachusetts, nor any legal outlawry as againsi 
them, and judgment of seizure was rendered against Cradoci 
only. The reason for this probably was, that the process of the 
Court of King's Bench did not run into the Colony, because the 
Court had no jurisdiction there ; and there could, of course, be 
no legal service there. 

April 4th, 1638, the Lords Commissioners, taking into con- 
sideration that complaints grow more frequent " for want of a 
settled and orderly government in those parts ; " and, calling to 
mind their former order to Mr. Cradock, about two or three 
years since, to cause the patent to be sent over ; and, being 
informed by the attorney-general that judgment had been entered 
in the quo warranto, ordered that the clerk of the council, attend- 
ant upon thern, should, in a letter from himself to Mr. Winthrop, 
convey their order; in which, "in his Majesty's name, and 
according to his express will and pleasure," as they said, they 
strictly required and enjoined him, or any other who had the 
custody, that they fail not to transmit the patent by the return 
of the ship ; — 

" it being resolved, that, in case of any further neglect or contempt by 
them showed therein, their Lordships will cause a strict course to be 

1 Hutch. Coll. Papers, p. 103. 2 Chalmers's Annals, vol. i. pp. 405, 439. 



24 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

taken against them, and will move his Majesty to reassume into his 
hands the whole plantation." ^ 

The General Court replied, that they were much grieved that 
their Lordships should call in the patent, there being no cause 
known to them, and no delinquency or fault of theirs expressed 
in the order ; asking to know what was laid to their charge, and 
to have time to answer; assuring their Lordships that they were 
never called to answer the quo ivarranto ; and if they had been, 
they doubted not that they should have put in a sufficient plea ; 
and representing that, if the patent should be taken from them, 
they should be looked on as " runnigadoes " and outlaws, 
enforced to remove to some other place, or to return to their 
native country, either of which would put them to unsupportable 
extremities ; and that (among other evils enumerated) the com- 
mon people would conceive, that his Majesty had cast them off, 
and that they were freed from their allegiance, and thereupon 
would " be ready to confederate themselves under a new govern- 
ment, for their necessary safety and subsistence, which will be 
of dangerous example to other plantations, and perilous to our- 
selves of incurring his Majesty's displeasure." ^ 

These repeated calls for the patent were in fact demands for 
its surrender, and they so understood. 

Hutchinson says, " It was never known what reception this 
answer met with. It is certain that no further demand was 
made." ^ But he is mistaken. 

It appears from Winthrop's History, vol. i. p. 298, that in 
1639 — the precise date is not given — 

" The Governor received letters from Mr. Cradock, and in them 
another order from the Lords Commissioners, to this effect ; that, whereas 
they had received our petition upon their former order, &c., by which 
they perceived, that we were taken with some jealousies and fears of their 
intentions, &c., they did accept of our answer, and did now declare their 

1 Hutch. Coll. Papers, vol. i. p. 105. Hutchinson appends to a copy of the order 
this note : " Whether the intent of this order was, that the patent should be sent 
over, that the government of the colony might be under a corporation in England 
according to the true intent of the patent, or whether it was that the patent might 
be surrendered, is uncertain." But the quo icarranio might have solved that doubt. 

2 Hutch. Hist. App., vol. i. p. 507 ; Winthrop, vol. i. p. 269. 

3 Hutch. Hist., vol. i. p. 88. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 25 

intentions to be only to regulate all plantations to be subordinate to 
their said Commission ; and that they meant to continue our liberties, &c. ; 
and therefore did now again peremptorily require the Governor to send 
them our patent by the first ship ; and that, in the mean time, they did 
give us, by that order, full power to go on in the government of the 
people, until we had a new patent sent us ; and withal they added threats 
of further course to be taken with us, if we failed ! " 

The next paragraph of the History is a curiosity, and I cannot 
resist the temptation to copy it in full. It shows why Hutchin- 
son never heard of the reception, and the further demand : — 

"This order being imparted to the next General Court, some advised 
to return answer to it. Others thought fitter to make no answer at all ; 
because, being sent in a j^rivate letter, and not delivered by a certain 
messenger, as the former order was, they could not proceed upon it, be- 
cause they could not have any proof that it was delivered to the 
Governor ; and order was taken, that Mr. Cradock's agent, who delivered 
the letter to the Governor, &c., should, in his letters to his master, make 
no mention of the letters he delivered to the Governor, seeing that his 
master had not laid any charge upon him to that end." 

The Lords Commissioners frankly admit their object, in this 
last order. They intended to bring all the plantations into 
subjection under their commission. The charter stood in their 
way. They called for it, and it did not come. Process to 
enforce a forfeiture of it had failed. There was a very good 
reason for this thrice-repeated demand by the Commissioners. 
Their commission purported to give it to them, with authority 
to revoke it, if, upon view of it, they found any thing hurtful to the 
King, his crown, or prerogative royal. The possession of it was 
thus made necessary to a revocation by the Commissioners. A 
view of a copy was not sufficient. No reason is apparent why 
this might not have been made otherwise. Perhaps it would 
have been, if there had been apprehension of difficulty in obtain- 
ing possession. But so it stood. Therefore the repeated 
attempts to obtain a surrender, with the threats if it was not 
forthcoming. It was important to exhibit a semblance of a 
legal revocation. There were too many complaints of the 
exercise of arbitrary power in England, to render it expedient 
to add others in relation to the colonies. 

We have seen how the General Court disposed of the last 



26 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

demand ; and the King and Laud soon found other matters to 
occupy their attention. 

Now in all these proceedings, the character of which I have 
stated in detail, I find no trace of an allegation, that " the true 
intent of the patent " was, that the government of the Colony- 
should be under a corporation in England ; and I submit, that 
the omission of such an allegation was a moral impossibility, 
if it had been so understood, especially as the transfer of the 
charter caused the main obstacle to the efforts of the Commis- 
sioners to revoke it. 

The first appearance of an official objection which I have 
found, against the transfer, was in July, 1679, in the course of the 
difficulties in which Randolph was so conspicuous ; " when," as 
Chalmers says, "the King wrote to the General Court, and re- 
quired that other agents should be sent over, properly instructed ; 
giving as a reason, which struck at the foundation of its power, 
that, since the charter by its frame was originally to have been 
executed within the kingdom, otherwise than by deputy, it is not 
possible to establish perfect settlement till those things are better 
understood." ^ This objection is among the articles of high 
crimes and misdemeanors presented by Randolph to the Com- 
mittee of the Council, in 1682.^ But it finds no place in the 
process in Chancery, in 1684, in which a decree was entered, that 
the charter be vacated, and cancelled.^ 

Chalmers, in another place, states, that the Attorney-General, 
Sawyer, gave it as his official opinion, " that the patent having 
created the grantees and their assigns a body corporate, they 
might transfer their charter and act in New England." The 
reason thus stated, is certainly not satisfactory. Chalmers adds, 
that " the two Chief Justices, Rainsford and North, fell into a 
similar mistake, by supposing that the corporate powers were to 
have been originally executed in New England,"^ — an opinion 
which I have endeavored to sustain, by the terms of the charter, be- 
fore I was aware of the high authority by which it was supported. 

Usage is permitted to give a construction to an ancient 
charter or deed, where there is an ambiguity. Here was a 
use of the powers of government under the charter, — holding 

1 Chalmers's Annals, vol. i. p. 408. 2 n,., p. 462. 

3 Mass. Hist. Coll. 4th Series, vol. ii. p. 246. « Chalmers, p. 173. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 27 

General Courts, and transacting all the business of the corporation 
within the Colony, which, if unlawful, rendered all the acts 
done under it during the time legally invalid, — with no objection 
on the part of the Crown in that particular, although other objec- 
tions were made that the corporation had transcended its powers. 

If this is not strictly a " usage" within the general rule, it is a 
contemporaneous construction by all parties, which is as strong, 
and even stronger, evidence than usage, to give the true inter- 
pretation of an instrument. When we add to this the fact, that 
in tv/o processes to enforce the forfeiture of the charter, there is 
an entire omission of any allegation that wrong had been done 
in this respect, the evidence is sufficient to overcome any, even a 
very grave, ambiguity. But the fact, that there is here no am- 
biguity, explains the absence of all objections. 

1 am referred to " A copy of the docquet of the grant to Sir 
Henry Rosewell and others, taken out of the Privy-seal-office, at 
Whitehall," authorizing the draft of the charter; to show that it 
was the intention of the Crown or Council tbat the corporation 
should have its residence in England. It runs thus: — 

" A grant and confirmation unto Sir Henry Rosewell, his partners, and 
their associates, to their heirs and assigns for ever, of a part of America, 
called New-England, granted unto him by a charter from divers noblemen 
and others, to whom the same was granted by the late king James, with 
a tenure in socage, and reservation of one-third part of the gold and silver 
ore : Incorporating them by the name of the governor and company of the 
Massachusetts-Bay, in New-England, in America, with such other privi- 
leges, for electing governors and officers here in England for the said 
company ; with such other privileges and immunities as were originally 
granted to the said noblemen and others, and are usually allowed to cor- 
porations here in England. His majesty's pleasure, signified by Sir Ralph 
Freemen, upon direction of the lord-keeper of the great-seal ; subscribed 
by Mr. Attorney-general ; procured by the lord viscount Dorchester ; Feb- 
ruary, 1 628. Memorandum. Their charter passed 4"" March following." ^ 

I will admit that this is explicit enough to show that there 
was an intention when that minute was made, that the corpora- 
tion should have a local habitation in England. 

But I remark first, that by the plainest rules of evidence, 
this memorandum of the proceedings of the Council, prior to the 

' Chalmers's Annals, vol. i. p. 147. 



28 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

grant of the charter, cannot be admitted as evidence to control 
or vary the provisions of this instrument, as actually drawn up, 
formally executed, with the great seal annexed, and made matter 
of record ; or to show the intention at the time of the final exe- 
cution. In the absence of all ambiguity, the intention is to be 
derived only from the instrument itself. 

My next remark is, that this " docquet," taken in connection 
with the charter itself, and other admitted facts, furnishes most 
plenary proof that the intention thus appearing, was in fact 
changed when the charter was afterwards drawn and authenti- 
cated. There would be no need of another " docquet" to show 
this, as the charter itself would and did show it. 

The palpable difference between the terms of this memorandum 
and the charter itself, in the omission of an express provision in the 
charter assigning a residence in England to the corporation, can 
be accounted for only on a change of intention upon that point. It 
was not a matter which could have slipped out accidentally, and 
the omission have escaped the scrutiny to which the charter must 
have been subjected after it was prepared, and before it passed 
the great seal. 

Further, the docquet shows an intention at that time, to 
grant such other privileges and immunities as were originally 
granted to the said noblemen and others (the Council at Ply- 
mouth), and are usually allowed to corporations in England. 
Here again, the great difference between the charter itself, and 
the intention shown by the minutes, is palpable evidence of a 
change of intention in this respect, also. It is sufficient to specify 
the difference in two or three particulars. 

The Council consisted of forty members, each of whom were 
to be presented to the Lord Chancellor, or the Lord High 
Treasurer, or the Lord Chamberlain of the Household, to take 
his oath. Power was given to the President, deputy, or any two 
councillors, to administer the oaths of allegiance and supremacy 
to all persons who should go to the Colony of New England ; 
and it was made lawful for them to minister oaths as well to 
persons employed by them, for the faithful performance of their 
service, as to other persons, for the clearing of the truth ; but 
there was no clause requiring officers other than those who were 
councillors to take any oath of office ; and their laws, as we 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 29 

have seen, were to be as near as conveniently might be to those 
of England. The difference between the Council at Plymouth, 
and the Governor and Company of Massachusetts Bay, was 
substantially between an aristocratic corporation, composed of 
forty noblemen and gentlemen, which was to exercise its powers 
at a specified place in England, and make laws like the laws of 
England, as near as conveniently might be, and which might 
or might not administer oaths to persons in its employment ; 
and a democratic corporation of an indefinite number, which 
was to hold General Courts, and might enact such laws as 
should be found expedient, so they were not contrary to the laws 
of the realm ; which was required to administer oaths to all the 
officers, in a particular mode, for the faithful discharge of their 
duties; and which was not restricted as to place, so that it 
might set up its government either in England or on the Planta- 
tion, as it should see fit. Assuredly the docquet did not govern 
the provisions of the charter. 

After setting out the copy of the docquet, Chalmers pro- 
ceeds, — 

" In the same papers, bundle 5, page 322, there is a sketch, drawn by 
Mr. Blathwayt, stating ' the clauses in the charter, shewing, that it was 
intended thereby that the corporation should be resident in England.' 
And, indeed, the whole tenor of the patent, as well as the subsequent 
conduct of the corporation, evinces the truth of that impoitant fact. 
But the following extract of an agreement, entered into at Cambridge, 
the 26th of August, 1629, between Saltonstall, Dudley, Wintlirop, and 
other chief leaders of Massachusetts, demonstrates that trutli. From 
a collection of papers, made by Mr. Hutchinson, relative to the history of 
Massachusetts, p. 25-6 : — 

" ' We sincerely promise, to embark for the said plantation, by the first 
of March next, to the end to pass the seas (under God's protection), to 
inhabit and continue in New England. Provided always, that, before the 
last of September next, the whole government, together with the jiatent 
for the said plantation, be first, by an order of Court, legally transferred 
and established, to remain with us and others, which shall inhabit upon 
the said plantation.' " 

Blathwayt was contemporary with Randolph. It seems, 
therefore, that this specification of clauses was made about the 
time Randolph was alleging that the government was unlawfully 



30 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

established in Massachusetts ; that is to say, some forty or fifty 
years after its establishment there. What these clauses were, I 
am unable to say. Chalmers does not state them, and, unfortu- 
nately, I do not find them in the charter. 

But the most wonderful evidence of an intention that the 
corporation should be resident in England, is that derived by 
Chalmers from the agreement of Winthrop and others, which 
he copies, and which he says demonstrates its truth. His con- 
clusion is to be accounted for, perhaps, by the supposition that 
he understood the words, " by an order of Court," in this agree- 
ment, to refer to the Court of his Majesty, at Whitehall ; whereas, 
the contracting parties had reference to an order of the General 
Court of the Company, such as was passed three days after- 
wards. 

Chalmers concedes that this docquet " evinces, that what was 
so strongly asserted, during the reign of Charles IL, to prove 
that the charter was surreptitiously obtained, is unjust." 

I have considered this proposition at length ; not only because 
the transfer has sometimes been regarded as sharp practice on 
the part of the grantees, but for the reason, already suggested, 
that, if the transfer was unlawful, the whole legislation of the 
company afterwards was unwarranted. The company had 
power to make laws for, and to govern, a Colony. But their 
authority to do this was as a corporation ; and a corporation, 
having a fixed locality, cannot hold corporate meetings, make 
by-laws, elect officers, and do other acts necessary to be done by 
the corporation itself, except in the place where it has its legal 
residence. In the absence of prohibition or limitation, it may 
hold property, may trade, and perform other acts which can be 
done by agents, elsewhere. 

3. The charter gave ample powers of legislation and of 
government for the Plantation, or Colony, including power to 
legislate on religious subjects, in the manner in which the 
grantees and their associates claimed and exercised the legis- 
lative power. 

It granted power to the General Courts — 

" from time to time to make, ordain, and establish, all manner of whole- 
some and reasonaVjle orders, laws, statutes, ordinances, direotious, and 
instructions, not contrary to the laws of this our realm of P^ngland, as 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 31 

well for settling the forms and ceremonies of government and magistracy, 
fit and necessary for the said plantation, and the inhabitants theie, and 
for naming and settling all sorts of officers, both superior and inferior, 
which they shall find needful for that government and plantation, and the 
distinguishing and setting forth of the several duties, powei's, and limits 
of every such office and place, and the forms of such oaths warrantable 
by the laws and statutes of this our realm of England as shall be re- 
spectively ministered unto them, for the execution of the said several 
otlices and places ; as also for the disposing and ordering of the elections 
of such of the said officers as shall be annual, and of such others as shall 
be to succeed in case of death or removal, and ministering the said oaths 
to the newly elected officers, and for impositions of lawful fines, mulcts, 
imprisonment, or other lawful correction, according to the course of other 
corporations in this our realm of England ; and for the directing, ruling, 
and disposing of all other matters and things, whereby our said people, 
inhabitants there, may be so religiously, peaceably, and civilly governed, 
as their good life and orderly conversation may win and incite the natives 
of the country to the knowledge and obedience of the only true God and 
Saviour of mankind, and the Christian faith, which, in our royal intention 
and the adventurer's free profession, is the principal end ot this plantation." 

" Willing, commanding, and requiring, ordaining and appoint- 
ing," that all such orders, laws, statutes, and ordinances, instruc- 
tions and directions, as should be so made by the Governor, 
deputy governor, assistants, and freemen, and published in 
writing under their common seal, should be carefully and duly 
observed, kept, performed, and put in execution; the letters 
patent to be to all officers a sufficient warrant therefor, against 
the King himself, and his heirs and successors. 

But there was a restriction upon their legislation, religious as 
well as civil. They were to make no laws contrary to the laws 
of the realm ; and the question arises, What was the character 
and what the extent of this restraint? 

We may safely conclude that the meaning of the provision is 
not that they are to make no laws different from the common 
law of England, for much of that law was entirely inapplicable 
to their condition, so that they were under the necessity of 
making different laws. Laws different from, contrary to, the 
laws of feudal tenure could not come within the prohibition. 
The same may be said of laws relating to the peerage, and 
divers other matters of more common concern. 



32 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

So we may be assured that it was not a prohibition to make 
laws different from the statutes of England, for it was known 
that it was to escape from some of those laws that they emi- 
grated. If they could make no law which provided for a dif- 
ferent form of worship than that which was established in Eng- 
land, — if they must establish that with all its concomitants, 
they would hardly have crossed the Atlantic for the privilege of 
voluntarily subjugating themselves by their own acts, to the 
pains and penalties, and violation of conscience, to which the 
acts of others would have subjected them if they had re- 
mained. Moreover, they had no bishops, — could not consecrate 
any, — and no one proposed to do that for them when the charter 
was granted. Laud would doubtless have been pleased to do 
them that favor three or four years afterwards ; but their right 
of legislation, or the restraints upon it, or the removal of re- 
straints, did not depend upon that. 

The true construction of the clause is, that they shall make no 
laws contrary to, — antagonistic to, — in contravention of, the 
laws of the realm which extended or should extend over them, 
as inhabitants of the Colony, and which were to be their par- 
amount law. 

We are thus brought to the question, whether any, and what 
laws of the realm were in force in the Colony at the time of the 
charter and emigration. Happily we can settle this question by 
authority. It is agreed that the law of the conqueror does not 
extend over the conquered country, until the conqueror pleases 
to put it in force there. And although we now hold that the 
title of the Crown to the greater portion of this country was by 
right of discovery, it was held by the Courts of England, long 
subsequent to the reign of Charles L, to be a title by conquest. 
Chief-Justice Holt, in the Court of King's Bench, in the 
4th of Anne, said, " The laws of England do not extend to 
Virginia I being a conquered country, their law is what the King 
pleases." 1 And Blackstone, lecturing as late as 1756, says, 
" Our American plantations are principally of this latter sort 
[conquered or ceded countries], being obtained in the last cen- 
tury, either by right of conquest, and driving out the natives, 
(with what natural justice I shall not at present inquire), or by 
1 Salkeld's Reports, vol. i. p. 666. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 33 

treaties. And, therefore, the common law of England, as such, 
has no allowance or authority there." He adds, that they are 
" not bound by any acts of Parliament, unless particularly 
named." ^ 

Mr. Justice Story, it is true, says of the doctrine of Mr. Justice Black- 
stone, " It is manifestly erroneous, so far as it is applied to the colonies 
and })lantations composing our Union. In the charters, under which all 
these colonies were settled, with a single exception [Pennsylvania], there 
is, as has been already seen, an express declaration, that all subjects and 
their children inhabiting therein, shall be deemed natural-born subjects, 
and shall enjoy all the privileges and immunities thereof; and that the 
laws of England, so far as they are applicable, shall be in force there ; 
and no laws shall be made, which are repugnant to, but as near as may be 
conveniently, shall conform to the laws of England."^ 

But here is a great mistake, so far as it relates to Massa- 
chusetts. There is no provision, either in the Colony or in the 
Province charter, that the laws of England, so far as they are 
applicable, shall be in force there ; nor that the laws of the Colony 
or Province shall, as near as conveniently may be, conform to 
the laws of England. 

He says farther, " Now, this declaration, even if the Crown previously 
possessed a right to establish what laws it pleased over the territory, as a 
conquest from the natives, being a fundamental rule of the original settle- 
ment of the colonies, and before the emigrations thither, was conclusive, 
and could not afterwards be abrogated by the Crown." 

And in the next section, " The universal principle (and the practice 
has conformed to it) has been, that the common law is our birthright and 
inheritance ; and that our ancestors brought hither with them, upon tlieir 
emigration, all of it which was applicable to their situation." 

1 Blackstone's Com., vol. i. p. 108. 

2 Story's Com. on the Constitution, § 156. — The principle that the laws of the dis- 
coverer extend over the discovered coimtiy,without any action for that purpose, if sound 
to an}' extent, must be subject to grave limitations. One of the reasons given why 
the laws of the conqueror do not extend over the conquered country is, " because, for a 
time, tliere must want officers, without which our laws can liave no force." ( Salkeld's 
Reports, vol. i. p. 412.) That would certainly apply with its full tbrce to the discoveries 
in America. If the colonists had found the common law here, or had brought it with 
them, it must have been packed away, until the machinery was provided to put it 
in operation. Another reason, viz., that the laws of the conqueror may not be 
suited to the state and condition of the conquered, is applicable, to a great extent, in 
the case of settlement, under title derived from discovery. 

3 



34 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

This allegation may be found repeated again and again, — in 
judicial decisions, even, since the time of the Province charter, — 
but it must be taken with some grains of allowance. Applied 
to the early emigrants and their proceedings, it cannot be sup- 
ported. As to them, there is better and more satisfactory evidence 
that they did not bring the common law with them as a part of 
their law, than can be derived from any inference respecting the 
general principle which would govern the case, either as an ac- 
quisition by conquest, purchase, or discovery. 

James I. having the right to govern the country either directly 
or through a local government established by him, granted the 
charter of the Council at Plymouth, in the county of Devon, 
giving the grantees power to correct, punish, pardon, govern, and 
rule, the inabitants — 

" according to such laws, orders, ordinances, directions, and instructions, as 
by the said Council aforesaid shall be established ; and, in defect thereof, 
in cases of necessity, according to the good discretions of the said gov- 
ernors and officers respectively, as well in cases capital and criminal as 
civil, both marine and others ; so always as the said statutes, ordinances, 
and proceedings, as near as conveniently may be agreeable to the laws, 
statutes, government, and policy of this our realm of England." 

The Puritans claimed title to their lands under this charter, 
but not their corporate authority and privileges. Their charter 
gave them power to pass laws, without any provision for the 
introduction of the common law, and not even requiring that 
their laws and proceedings should be as near as conveniently 
might be to the laws of the realm ; but providing that they 
should make none contrary to the laws of the realm. The 
grantees neither claimed nor recognized the common law as a 
part of the laws by which they were governed. There is nothing 
in their records, nor in their statutes, nor in their declarations, to 
show any recognition of it as their law. It neither regulated the 
rights of persons or things, nor did it furnish the rule of judicial 
decision. Where a discretionary power was vested in the mag- 
istrate, he consulted the common law with an inquiry how the 
case would be determined by that law, and it is quite probable 
that he usually adopted it, because it is said to be founded in 
right reason ; and for reasons of a prudential character, it was 
desirable that their proceedings should be, in the language of the 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 35 

charter of the Council at Plymouth, as near as conveniently 
might be, agreeable to the laws and policy of the realm. But 
the magistrate was not bound by it, being at perfect liberty, if he 
thought fit, to act on what he deemed a better opinion of his own. 

The claim of the colonists, that the common law was a part 
of their birthright, and formed a part of their laws, came in at a 
later period, after their controversies with the Crown had as- 
sumed grave proportions. It was interposed as a shield against 
arbitrary power, and was doubtless founded upon the clause in 
the charter securing to them the privileges and immunities of 
natural-born subjects, perhaps also upon a general principle to 
that effect in the absence of special provisions. It may be a 
matter of curious inquiry to ascertain the precise circumstances 
of its introduction and reception. 

The Puritans claimed the right to pass their own laws, with 
the Bible, and not the common law, as their fundamental law. 

This is conclusively shown by the answer of the General 
Court, in 1646, to the petition of Dr. Child and others, com- 
plaining, among other thiiigs, that they could not, according to 
their judgments, discern a settled form of government according 
to the laws of England. To this complaint the answer is, — 

" For our government itself, it is framed according to our cliarter and 
the fundamental and common laws of England, and carried on according 
to the same (taking the words of eternal truth and righteousness along 
with them, as that rule by which all kingdoms and jurisdictions must 
render account of every act and administration, in the last day), with as 
bare allowance for the disproportion between such an ancient, populous, 
wealthy kingdom, and so poor an infant thin colony, as common reason can 
afford. And because this will better appear by comparing particulars, 
we shall draw them into a parallel. In the one column we will set 
down the fundamental and common laws and customs of England, begin- 
ning witli Maijna Charta, and so go on to such others as we had occasion 
to make use of, or may at present suit with our small beginnings. In the 
other column, we will set down the sum of such laws and customs as are in 
force and use in this jurisdiction, showing withal (where occasion serves) 
how they are warranted by our charter. As for those positive laws or 
statutes of England which have been ft'om time to time established upon 
the basis of the common law, as they have been ordained upon occasions, 
so they have been alterable still upon like occasion, without hazarding or 
weakening the foundation, as the experience of many hundred years hath 



36 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

given proof of. Therefore there is no necessity that our own positive 
laws (which are not fundamental) should be framed after the pattern 
of those of England ; for there may be such different respects, as in one 
place may require alteration, and in the other not." ^ 

Then follows, in lengthened columns, divers provisions of 
Magna Charta and the common law, on the one side, and the 
corresponding " Fundamentals of Massachusetts," on the other, 
showing their similarity. 

To the same effect is the statement of Edward Winslow, in 
his " New England's Salamander Discovered," published in 
London, 1647, in answer to Dr. Child's " New England's Jonas 
cast up at London : " — 

" As for the law of England, I honor it, and ever did, and yet know 
well that it was never intended for New England, neither by the Parlia- 
ment, nor yet in the letters patents, we have for the exercise of govern- 
ment under the protection of this State ; but all that is required of us in 
the making of our laws and ordinances, offices and officers, is to go as 
near the laws of England as may be : ^ which we punctually follow, so 
near as we can. ... 

" And however we follow the custom and practice of England so near 
as our condition will give way, yet as the garments of a grown man would 
rather oppress and stifle a child, if put upon him, than any way comfort 
or refresh him, being too heavy for him, so, have I often said, the laws of 
England, to take the body of them, are too unwieldy for our weak con- 
dition. Besides, there were some things supported by them which we 
came from thence to avoid ; as the hierarchy, the cross in baptism, the 
holy days, the Book of Common Prayer," &c. . . . 

" As for our trials between man and man, he knows we go by jui-y 
there as well as here. And in criminals and capitals we go by grand 
jury and petty jury. And where tlie death of any is sudden, violent, or 
uncertain, tlie crowner sits upon it by a quest, and returneth a verdict, 
&c., and all according to the commendable custom of England, whom we 
desire to follow. But their main objection is, that we have not penal 
laws exactly set down in all cases ? 'Tis true, I confess, neither can they 
find any Commonwealth under heaven, or ever was, but some things were 
reserved to the discretion of the judges ; and so it is with us, and no other- 
wise, our General Courts meeting together twice a year, at least, hitherto, 

1 Hutch. Coll. Papers, p. 199. 

2 Referring, it seems, to the charter of tlie Council at Plymouth, which granted 
to Bradford the charter of the Plymouth Colony. 



CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 37 

for that very end, and so continuing so long as their occasions and the 
season will permit : and in case any misdemeanor beftxU where no penalty 
is set down, it is by solemn order left to the discretion of the bench, who, 
next to the Word of God, take the law of England for their precedent 
before all other whatsoever. And as I said before, if I would enter into 
particulai's, I could here set down in a line parallel, as I received it,^ in 
answer to the petition of Doctor Robert Child, &c., mentioned in their 
book, ' the fundamentals of the Massachusetts concurring with the privi- 
leges of Magna Charta and the common law of England at large.' " ^ 

Chief-Justice Hutchinson, also, is a competent authority upon 
the point, that the first emigrants did not claim the common law 
as a part of their law, nor acknowledge it as having authority 
with them. In a charge to the grand jury, March term, 1767, 
he said, — 

"I don't know a nation in the world, that makes the distinction between 
murther and manslaughter, which the English do. It was not made in this 
country before the charter [Province charter] ; for our forefathers founded 
their laws upon the law of Moses, which makes no such distinction." 

In another charge, March term, 1768, while he repeats the 
statement — at that time, and since, quite common — respecting 
the introduction of the common law, he is even more explicit in 
his declaration, that the first emigrants did not consider them- 
selves bound by it, and did not regard it as their law. 

" Our ancestors, gentlemen, when they came over to this country, 
brought with them the common law of our mother country (which is with 
great propriety so called) ; and although their first charter bound them 
down to make no laws contrary to the law of EIngland, yet, from the 
situation they were then in, and from their peculiar circumstances, they 
then apprehended they had a right to adopt the judicial laws of Moses 
which were given to the Israelites of old. They at that time considered, 
not how crimes affected the peace and harmony of society, but almost 
always adapted their punishment to the real guilt of the criminal 

" Upon a judgment given against the old charter, the peojile could never 
obtain so great a boon, as they thought their old charter : since, you are 
sensible, they appointed all their officers, made all their laws, without 
any control from home AVe stand, therefore, upon quite a different 

1 He was agent for Massachusetts at the time. 

2 See Mass. Hist. Coll. 3d Series, vol. ii. pp. 137-140. 



38 CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 

footing from our forefathers, and the principle of our laws is very variant 
from- that which governed them under the old charter. There were 
several attempts made, since our present charter, to enact laws upon the 
old charter principles ; but they all failed, and the laws were disallowed 
in Gi'eat Britain." 

"The principle of law which now governs us, is to punish crimes, only 
as they affect society." ''■ 

But all this is not necessary to the support of my position, 
that the comnrion law, and the statute law of England in amend- 
ment of the common law, were not the laws of the realm, 
contrary to which the colonists were to make no laws ; for 
their power to pass statutes contrary to both, has been exer- 
cised without question ever since the common law has been 
recognized as in force in the Colony and in the Province ; 
subject, after the Province charter, to the negative of the Crown, 
as provided in that instrument. 

Chalmers interprets the restraint, — " You shall make no ordi- 
nances inconsistent with the connection between the territory 
and the country of which it is a member ; " and says further, 
" so a colony may adopt new customs ; may abrogate that part 
of the common law which is unsuitable to its new situation ; 
may repeal the statute law wherein it is inapplicable to its con- 
dition. All it may change, except only the principles of its 
coalition with the State, or the special regulations of the 
supreme power, or great body-politic of the empire with regard 
to it." — With this exposition of the clause of restraint, it would 
be quite unimportant whether or not the common and statute 
law of the realm extended over the Colony. Any law of the 
Colony inconsistent with either would abrogate or repeal, it, 
without any violation of the clause of restraint.^ 

It may be said that the King was restrained by Magna Charta 
and the Petition of Right, as well in his colonial possessions, as 
in England itself. 

The colonists were subject to the lawful legislation of the 
mother country ; and so far as that legislation was extended 
over them by the force of the legislation itself, or by the legiti- 

i Quincy's Mass. Reports, 1761-1772. Published 1865. Pages 235, 258-260. 
'■^ Clialniors's Annals, vol. i. p. 140. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 39 

mate power of the Crown, so far they could make no laws, civil 
cw religious, in contravention of it. The navigation acts ex- 
tended over them ; and their legislation, contrary to those acts, 
was one of the allegations in the scire facias, on which the 
charter was vacated and cancelled. But it was held, that the 
habeas corpus act, passed 31st, Charles IL, did not extend to the 
colonies, because they were not named in it. 

After the clause authorizing legislation, follows a provision 
that the Governor and company " and all the chief commanders, 
captains, governors, and other officers and ministers " as should 
by said orders, laws, &c., from time to time be employed in the 
government of the said inhabitants and plantation, or in the way 
by sea thither or from thence, according to the nature and limits 
of their offices, — 

"shall, from time to time, hereafter for ever," — "have full and abso- 
lute power and authority to correct, punish, pardon, govern, and rule all 
such the subjects of us, our heirs and successors, as shall from time to time 
adventure themselves in any voyage thither or from thence, or that shall 
at any time hereafter inhabit witliin the precincts and parts of New England 
aforesaid, according to the orders, laws, ordinances, instructions, and direc- 
tions aforesaid, not being repugnant to the laws and statutes of our realm 
of England as aforesaid." 

The power to pardon is conclusive evidence of a grant of 
political government, no such power being known in an ordinary 
corporation. 

It hardly seems to be within the power of language, more 
completely to negative the idea that the charter constituted a 
corporation mainly for the purpose of trade and traffic ; or, 
more clearly, to grant powers of legislation and government, 
whereby the inhabitants of the Colony might be " religiously, 
peaceably, and civilly governed." 

Whatever Charles II. may have said about general liberty of 
conscience, of which he personally made a very large exhibition 
in some particulars, Charles I. and his ministers could not but 
form a reasonable judgment respecting the mode and manner in 
which the Colony would be religiously, as well as civilly, gov- 
erned under his charter, whether he ever read it or not. 

4. The charter authorized the exclusion of all persons whom 
the grantees and their associates should see fit to exclude from 



40 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

settlement in the Colony ; and the exclusion of those already set- 
tled, by banishment as a punishment for offences. 

They were the owners of the soil ; and, in the absence of con- 
ditions or limitations, the owner of such a title has an exclusive 
right of possession. They were the grantees of a charter of 
incorporation ; and such grantees, unless there is some special 
provision or circumstance controlling them, may determine who 
shall be admitted to a participation in their corporate rights. 

There was, here, nothing of condition or limitation in relation 
to their title to the territory ; and their right to judge whom they 
would admit did not depend upon the general principle merely, 
but was express. They were to admit such persons as they 
thought fit, to be freemen. 

Persons who came on their invitation, or through inducements 
held out by them, or with their consent in any way, could not in 
justice be sent away arbitrarily, or for any fancied dislike. In 
that respect they stood like other governments; and the proprietor- 
ship of the soil, which they held out for occupation and settlement, 
would not give them the right of removal as if such parties were 
trespassers. Coming by consent, and obeying the laws, they 
would be entitled to protection. But aside from considerations 
of this kind, the power of exclusion, on fair notice not to come, 
could not be made more perfect. 

The King desired to limit their power of admission, so that 
persons especially obnoxious or dangerous to him, should not be 
harbored there, and he retained the power of exclusion to him- 
self, by an express provision, which, however, was so limited that 
he could exclude only persons who were designated by name. 

It has been supposed that the provision, that all subjects of the 
King and his successors who should go to, and inhabit within, 
the lands granted, should have and enjoy all liberties and immu- 
nities of free natural subjects, might be regarded as evidence of 
a restriction upon the right of exclusion by the grantees. But 
this cannot be maintained, for two reasons. — First, because this 
can be applied only to persons rightfviUy there, or going to, or 
returning from, the territory. It could not, of course, apply to 
any one whom the King had excluded by name from going 
there ; and if there be this implied limitation upon it, in relation 
to persons excluded by the King, the same limitation must be 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 41 

implied in regard to persons excluded by the colonial govern- 
ment, which, as we have just seen, aside from this provision, had, 
from its title, as perfect a power of exclusion as the King had 
by the clause for that purpose in his favor. It would be a gross 
violation of sound rules of constrjiction, to say that this clause 
was a clause of protection to persons who had no lands, and no 
interest in the charter, and who were, moreover, prohibited from 
coming and remaining there, by the owners of the land and the 
grantees of the charter ; for if it might so apply to any, it would 
apply to all who should go, and the right to the land and the 
corporate privileges would soon be rendered a nullity. — Second, 
this clause, rightly understood, is a limitation upon the royal 
authority, to the extent of its operation, and not upon the 
authority of the colonists. The King will not put persons out 
of the pale of English subjects, — deprive them of the privileges 
of English subjects, — because they go and inhabit there. They 
shall be Englishmen still. Let us see this a little more clearly, 
by a citation of the provision itself. 

" And, further, our will and pleasure is, and we do hereby for us, our 
heirs and successors, ordain and declare, and grant to the said governor 
and company, and their successors, that all and every the subjects of us, 
our heirs or successors, which shall go to and inhabit within the said lands 
and premises hereby mentioned to be granted, and every of their children 
which shall happen to be born there, or on the seas in going thither, or 
returning from thence, shall have and enjoy all liberties and immunities 
of free and natural subjects within any of the dominions of us, our heirs 
or successors, to all intents, constructions, and purposes whatsoever, as if 
they and eveiy of them were born within the realm of England." 

You perceive that it is confined to subjects, and does not in- 
clude strangers. It provides that these subjects, and their children 
born there or on the passage to and from, shall have the liberties 
and immunities of free natural subjects within any of the King's 
dominions, as if they were born within the realm. What were the 
liberties and immunities of such subjects ? Certainly, not to go 
and inhabit the crown lands against the will of the King, or any 
lands which the King had granted, against the will of the per- 
sons to whom the grant had been made. Certainly, not to in- 
trude themselves into any corporate rights which had been 
granted to others. Persons who should go and inhabit lawfully, 



42 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

should have the general rights of Englishmen as secured by 
" Magna Charta," and the customs of the realm. But this did 
not exempt them from any legislation, otherwise lawful, under 
the charter. 

5. The charter authorized the creation and erection of courts 
of judicature to hear, try, and determine causes, and to render 
final judgments and cause execution to be done, without any 
appeal to the courts of England, or any supervisory power of 
such courts. 

To the express provision authorizing the establishment of all 
manner of wholesome laws, statutes, and ordinances, for settling 
the forms and ceremonies of government and magistracy, fit and 
necessary for the Plantation, — for the settling of all sorts of offi- 
cers which they shall find needful for that government and Plan- 
tation, and for setting forth their several duties and powers, — 
and also to that giving full and absolute power and authority to 
correct, punish, pardon, govern, and rule, I have already re- 
ferred. 

There is no provision in the charter for any original jurisdic- 
tion of the courts of England, over the Colony, nor for an appeal, 
in any shape, to those courts. And there was no custom of 
the realm, no common law, which gave any such jurisdiction. 
If it were supposed that the King had power to confer jurisdic- 
tion upon the courts of England, original jurisdiction in those 
courts would have been a denial of justice. And an appellate 
jurisdiction, afterwards deemed oppressive in the days of the 
Province, would, in the infancy of the settlement, have been next 
to impossible. The fact that there was no service of the writ, 
quo warranto, in 1635, within the Colony, shows very clearly that 
it was understood that process did not run there. 

The Lords Commissioners seem to have been careful not to 
attempt a regular service of their orders within the Colony. They 
were sent in letters from Mr. Meautis, their clerk, and from Mr. 
Cradock, to the Governor. 

Hutchinson, in stating the proceedings in 1691, when the 
grant of a Province charter was under consideration, remarks, — 

" By the old charter, it was said, they had power to imprison or inflict 
punishment, in criminal cases, according to the course of corporations in 
England, but that, unless capital cases be expressly mentioned, the power 



CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 43 

would not reach them ; that no power was given to erect judicatories, or 
courts for probate of wills, or with admiralty jurisdiction, nor any power 
to constitute a house of deputies or representatives, nor to impose taxes 
on the inhabitants, nor to incorporate towns, colleges, schools, &g., which 
powers and privileges had been, notwithstanding, usurped." ^ 

But this construction, limiting all the powers under the char- 
ter, " according to the course of corporations in England," is 
utterly unwarrantable. That expression occurs but once in the 
charter, and follows immediately after a provision in relation to 
elections. If it is not confined to "fines, mulcts," &c,, in rela- 
tion to that subject, no reasonable construction can extend it to 
other provisions which I have cited. It would be absolutely 
impossible to govern a colony in America, according to the 
course of corporations in England constituted for trading or 
even for municipal purposes. 

Hutchinson inserts in a note the opinion of Mr. Hook, who was 
consulted by Hampden in relation to the Province charter, among 
other things, that the grantees under the old charter had " no 
power to keep a prerogative court, prove wills, &c. ; nor to erect 
courts of judicature, especially chancery courts." ^ This is very 
astonishing, unless we suppose that Mr. Hook, in considering the 
express powers which should be inserted in the new charter, ac- 
cepted the objections which had been made to the old, by Gardi- 
ner and others, without any critical examination. Certainly, the 
old charter was intended to be complete for its purposes. No 
addition was contemplated to be made, either by King- or Parlia- 
ment. How were the people to be civilly and peaceably gov- 
erned, without courts? Was the power to punish and pardon 
to be exercised without any judgment of conviction ? What is 
meant by the power granted to make laws, " as well for settling 
of the forms and ceremonies of government and magistracy, fit 
and necessary for the said plantation," — "and for naming and 
settling of all sorts of officers, both superior and inferior, which 
they shall find needful for that government and plantation " ? 
The idea of a colony to be settled and governed without courts 
would be preposterous. 

It would seem, therefore, that the propositions which I have 
stated are fully sustained without any resort to the express pro- 

1 Hiitdi. Hist., vol. i. p. 415. 2 Jb.^ p. m 



44 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

vision in the charter, which embodies a general principle of law 
now well understood and applied in cases of doubt, to deeds 
of private persons, that the charter should be construed, reputed, 
and adjudged in all cases most favorably for the benefit and 
behoof of the grantees. 

If any thing were needed to fortify the foregoing positions, it 
may be found in the fact, that, in the process and proceedings in 
the latter part of the reign of Charles 11. to enforce a forfeiture 
of the charter, or to annul it, there was no allegation of a usurpa- 
tion of power in any of these particulars ; nor any alleged grounds 
of forfeiture founded upon either of them. 

The causes of forfeiture, as set forth in the Court of Chancery, 
were, that the Governor and company assuming on themselves, 
under color of their letters patent, power to assemble to make 
good and wholesome laws and ordinances, not repugnant to the 
laws of England, but respecting only their own private gain and 
profit, assumed the unlawful and unjust power to levy money of 
the subjects of the King, and, in prosecution of that power, made 
laws for levying poll taxes, and duties on merchandise and ton- 
nage ; that they had passed a law providing for a mint, and the 
coining of money ; and another, requiring an oath of fidelity to 
the government of the Colony.^ 

Undoubtedly, the absence of other allegations of abuse of 
power under the charter is not conclusive evidence of a belief 
on the part of the crown lawyers, that there were none others 
which could be sustained ; but there is no good reason why more 
should not have been enumerated, if it was supposed that others 
of a grave character existed, and a transfer of the charter and 
government, or an exclusion of his majesty's roystering subjects 
from inhabitancy, or any religious legislation whatever, if sup- 
posed to be unlawful, would hardly have been omitted. 

I have no means at hand to determine with certainty, why this 
process was instituted in Ijie Court of Chancery, which, ordi- 
narily, has no jurisdiction of proceedings quo warranto, and 

1 The power to coin money being, at that tmie, not an ordinary legislative power, 
but one of the King's prerogatives, the value of unusual pieces to he ascertained by 
proclamation, it might well he held that the charter did not confer it. And some 
of the legislation of the Colony maj' have been contrary to the navigation acts of the 
realm. To that extent, the complaints seem to have been well founded ; perhaps 
somewhat furtlier. 



CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS, 45 

relieves against, rather than enforces, forfeitures. In a " Brief 
Relation of the Plantation of New England," by an unknown 
author, written at London, in 1689, it is stated, — 

"that, in the year 1683, a quo warranto was issued out agaiust them," — 
that "the Governor and company appointed an attorney to appear and 
answer to the quo warranto^ in the Court of King's Bench. The prose- 
cutors not being able to make any thing of it there, a new suit Avas begun 
by a scire facias in the Court of Chancery." i 

Chalmers says of the quo warranto, " Randolph's was the ominous 
hand which carried it across the Atlantic. And to give weight to the 
messenger who, in Massachusetts, had little in himself, and to the pro- 
ceeding, which was equally obnoxious, a frigate was ordered to transport 
him thither." He says further, " After a variety of obstructions, arising 
from the distance, the novelty, and 7'eal difficulty of the business, a judg- 
ment was given for tlie King by the high Court of Chancery in Triuity 
term, 1684, against the Governor and company in Massachusetts, that 
their letters patents, and the enrolment thereof, be cancelled." 

The validity of the proceedings was afterwards " questioned 
by very great authority." ^ 

The reason why the prosecutors could not make any thing of 
it in the King's Bench may have been that suggested in relation 
to the former writ, that, as the process of the court did not run 
into the Colony, there could be no service there.^ It may have 
been that the writ did not issue against "the Governor and 
company." The colonists instructed counsel to take that ex- 
ception. But if that was the main objection, it might readily 
have been obviated by the issue of another writ. If so issued, 
however, it would have been an admission of the existence of 
the corporation, which was challenged by the allegations of 
usurpation in the process in 1635. 

It may be conjectured that the scire facias was brought in 
Chancery on the ground, that chancery might annul the char- 
ter, though out of its jurisdiction, on the sa^e principle that it 
now sometimes compels a man within its jurisdiction to give a 

1 Mass. Hist. Coll. 3cl Series, vol. i. p. 96 2 Annals, vol. i. pp. 414, 415. 

3 " The sheriffs " [of Middlesex, England] " principal objection why he did not 
return a summons was, the notice was given after the return was past. He did also 
make it a question ivhether he could take notice of New Em/land, hcinq out of his htlliirich." 
— Letter of Attormy- General Sawijcr. See Palfrey's Hist. Now England, vol. iii. p. 
391, note. 



46 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

deed transferring a title to lands lying within another govern- 
ment. But the cases are not alike. 

No judgment of forfeiture was entered, nor any decree order- 
ing any person to bring in and surrender the charter, or to do any 
other act in relation to it. The court adjudged, that the letters 
patent, " and the enrolment thereof, be vacated, cancelled, and an- 
nihilated, and into the said court restored, there to be cancelled ;" 
but there was no attempt to enforce the latter part of the decree. 

The proceedings may have been instituted in that court, upon 
the ground of an ancient jurisdiction of the chancellor to repeal 
grants of the King, which had been issued improvidently. But 
the assumption to enter a decree, that a charter granting lands, 
and corporate powers, and powers of government, and which 
had existed more than half a century, should " be vacated, can- 
celled, and annihilated," on account of usurpations, which, in 
case of ordinary corporations, may be a subject for proceedings 
by writ of quo ivari'anto in the King's Bench, — and especially to 
do this upon a writ issued to the sheriff of Middlesex, in England, 
under such circumstances that there could be neither service nor 
notice, — would be of itself a usurpation. And this seems to be 
its true character, whatever might be the reason alleged. 

If the colonial government was exercising power inconsistent 
with the charter, or with colonial dependence, the true remedy 
would at this day appear to have been, not by process to enforce 
a forfeiture, or to vacate the charter, which, if effective, would 
leave the inhabitants without any legal government ; but by an 
enforcement or amendment of the charter, in regard to its public 
powers and character, by the Crown, from which it was derived, 
or by an act of Parliament making the requisite provision for 
that purpose. 

The better opinion may be, that meeting with technical dif- 
ficulties in the court of law, resort was had to Chancery, because 
of a better assurance of speedy success} 

The proceeding appears to have been no more effective in its 
character, than might have been a judgment of seizure, in a pro- 
cess at law ; and, in fact, little better than would have been an 
order of the King in Council, that the charter was forfeited, 
with a revocation of its powers. However, the decree an- 

1 See Palf. Hist., vol. iii. 391-394. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 47 

swered its purpose. The colonists were not in a situation to 
contest it.i 

Certain differences between this charter and the charter of 
the Council established at Plymouth in the county of Devon, 
have already been considered. 

It may be noticed farther, as fortifying the position, that the 
powers granted in the charter of Charles included a power of 
exclusion, that the Great Patent to the Council provided, ex- 
pressly, that the territories granted should not be visited, 
frequented, or traded unto, by any other of the King's subjects, 
with a provision prohibiting all the King's subjects from visiting 
or trading there, unless it be with the license and consent of the 
Council, upon pain of the King's indignation, and imprisonment 
of their bodies during his pleasure, with forfeiture besides. And 
the King condescended and granted, that he would not grant any 
liberty or license to any person to sail, trade, or traffic there, 
without the good-will and liking of the Council. 

The provisions of the charter of Charles were so compre- 
hensive that there was no necessity for such express exclusions. 

A comparison of the provisions of the charter, with the sub- 
sequent proceedings of the Puritans, relieves them from the 
charges which have been so persistently urged against them. 

It has been said, that " the charter did not include any clause 
providing for the free exercise of religion, or the rights of con- 
science." But this is a mistake. It is true that there is not, in 
express terms, any such provision. It would have been most 
surprising, if the King had made proclamation of any such 
liberty, by a formal grant. But the power of legislation, which 
included the power to legislate on religious matters, was as 
plenary for that purpose, as an express grant would have been. 
The " letter from King Charles II. to Massachusetts," in 1662, 
asserts that " the principle and foundation of that charter 
was, and is, the freedom of liberty of conscience." ^ And a 
letter prepared for the royal signature, by the lords of the com- 
mittee for plantations, in October, 1681, not only recites that the 
charter granted " such powers and authorities as were thought 

1 See the Exemplification of the judgment. Mass. Hist. Coll., 4th Series, 
vol. ii. p. 246. 

'i Hutch. Coll. Papers, vol. i. p. 378. 



48 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

necessary for the better government of our subjects, at so remote 
a distance from this our kingdom ; " but adds, " nothing was 
denied, which you then deemed requisite for the full enjoyment 
of your property, and the liberty of your conscience, so you 
would always contain yourselves within that duty which the 
bonds of inseparable allegiance bind you to." ^ 

They did not come here to establish or provide for any gen- 
eral liberty of conscience. In his very full and complete ex- 
position of this fact, the reverend and learned gentleman with 
whom I am associated. Dr. Ellis, stated that they placed a re- 
straint — the restraint of the Bible — upon their own liberty of 
conscience. This depends upon the signification which we 
give to the term conscience, which, as you know, is sometimes 
used to designate the faculty by which we have ideas of right 
and wrong in reference to actions, without regard to, and per- 
haps in ignorance of, the precepts of the Bible, occasionally 
called natural conscience ; and it is sometimes used to designate 
the same faculty, instructed in the Bible, receiving it as the word 
of God, by which to test right and wrong, incorporating its 
restraints into, and making them part of itself, — not unfre- 
quently termed an educated or enlightened conscience. In the 
former signification, which is plainly the sense in which Dr. 
Ellis uses the word, the Puritans did not seek to establish liberty 
of conscience even for themselves. 

The charter in giving power to make orders, laws, &c., for 
directing, ruling, and disposing of all other matters and things, 
by which the inhabitants might be religiously governed, clearly 
contemplated government in matters of religion; and govern- 
ment in matters of religion, in those days, meant any thing other 
than liberty for every man to do what his notion of right and 
wrong dictated in that matter. The grantees meant and under, 
stood it, as government according to the laws of the Bible, In the 
other sense of the term, conscience, that is, the faculty of dis- 
tinguishing between right and wrong, instructed by the Bible, 
and according to its precepts, as they understood them, — liberty 
of conscience for themselves was precisely what they intended to 
secure. In other words, their great object was to secure for 
themselves and those who, with their principles, should associate 

1 Chalmers, vol. i. p. 444. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 49 

with them, the liberty to worship God according to the dictates 
of their own consciences, — enlightened by the Bible. 

The key to their enterprise, as thus presented, unlocks the 
repository of their ends and aims, intents and purposes ; and you 
have the explanation and the justification of their religious legisla- 
tion. 

They founded a civil State, upon a basis which should support 
the worship of God according to their conscientious convictions 
of duty ; and an ecclesiastical State, combined with it, which 
should sustain, and be in harmony with, the civil government; 
excluding what was antagonistic to the welfare of either. 

Some one may inquire. If such was the design of the Puritan 
Fathers in the establishment of their government here, why was 
it not more distinctly stated and proclaimed at the time, leaving 
no room for misconception afterwards ? The ready answer is, 
that, if a public development of all their purposes had been 
made, there might have been danger of some measures to 
defeat their designs, and to extinguish their hopes. The King 
and his ministers must have known the general character of the 
enterprise. There was no necessity that there should be a 
public proclamation of their intentions beyond what was made. 
It is sufficient that there was no stratagem and no deception in 
the matter. Doubtless, as the enterprise proceeded, some meas- 
ures were adopted, which were not originally contemplated. 

Is it asked. How it is possible that the Puritan Fathers, who 
were not recluses, but many of them men of education, — men 
of great intelligence in their day, — men mixing with the world, 
— could entertain the idea of establishing a Commonwealth, 
where religion should outwardly be brought to a rigorous test of 
uniformity, when they themselves were non-conformists to the 
Church of England? 

It may quite as well be asked. Why, with their deep religious 
convictions, they should have had any doubts of success ? Theirs 
was a religious as well as a civil State. The Jewish govern- 
ment, which was their pattern so far as it might be applicable, 
existed for ages. The Papacy had, for centuries, claimed the 
implicit reception of its dogmas, and unhesitating obedience to 
its mandates. The Reformation denied the infallibility of the 
Church of Rome, and exposed its errors ; but the political govern- 

4 



50 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

ment of England, as soon as it gave support to it, exercised 
a similar right of requiring conformity to the new doctrines, 
and the established ordinances. The Puritans loathed the cor- 
ruptions of the Hierarchy, and sought for purity of doctrine 
and simplicity of worship. They had unwavering faith that 
God would regard their enterprise, — their government, — and 
their Church, in its unhesitating reception of His revealed truth, 
in its sincere desire to learn His will, and do what was 
pleasing in His sight, in its simple forms of adoration and 
worship, — with especial favor. Why should they not, in the 
full assurance of that faith, devoutly believe that God Him- 
self had not only opened to them a way of escape from im- 
pending persecution ; but that He had reserved this wilderness 
to that time, as the place for the establishment of that faith and 
that worship on an enduring foundation ? In point of fact, the 
government which they established, did last for more than one 
generation, on the distinctive principles of their foundation ; and 
left its impress on the future, in a more wide-spread liberty, not 
only for our day, but for after ages. 

With the design and purpose by which they were actuated, 
with the deep conviction of the truth of their principles, of the 
importance of their enterprise, of the sacred ness of the trust 
committed to them, and of their duty to use all lawful means to 
secure its success, — all their legislation may be said to have 
been religious legislation. They legislated in the fear of God, 
and with a profound sense of their responsibility to Him ; which 
is more than can be said of the greater portion of the legislation 
at the present day. 

Tf, however, we take a more restricted signification, it may 
well be maintained that all their legislation, which had a direct 
tendency to aid in the accomplishment of their great purpose to 
bviild up a true Church and a righteous State, each supporting 
the other, was religious legislation. All the legislation for 
the enforcement of good morals, of good order in the com- 
munity, was in aid of this great object, and therefore in sub- 
servience to religion. 

More especially may the legal provisions for the promotion 
of education be regarded as of that character. One great 
purpose of their polity was to raise up a diligent and faithful 



CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 51 

ministry ; and the college which they founded, and to which our 
present Massachusetts turns with such pride, iiad that for one of 
its objects. 

It is, however, of the legislation having a more direct bearing 
upon the interests of religion, that I am to speak. We know 
from the character of their enterprise, what it must have been. 
We know from their records, what it was. 

Of course, it had reference, in the first instance, to the support 
of the ministers who were settled over the different churches ; 
who were participators in the hardships, hopes, and labors of the 
enterprise, and contributed so largely to its success. 

At the first court, held Aug. 23, 1630 : " Impr., it was pro- 
pounded how the ministers should be maintained." 

" Mr. Wilson and Mr. Phillips only propounded. It was ordered that 
houses be built for them at the public charge. Sir Richard Saltonstall 
undertook to see it done at his plantation for Mr. Phillips, and Mr. 
Governor at the other plantation for Mr. Wilson. It was propounded 
what should be their present maintenance. After specifying the quantity 
of meat, malt, money, &c., it is added, ' all this to be at the common charge, 
those of Mattapan and Salem only excepted." ^ 

Benedict, in his History of the Baptists, page 368, speaks of 
this, as " the first dangerous act performed by the rulers of this 
incipient government, which led to innumerable evils, hardships, 
and privations to all who had the misfortune to dissent from the 
ruling powers, in after times." And again, he says, " This was 
the viper in embryo ; here was an importation and establish- 
ment, in the outset of the settlement, of the odious doctrine of 
Church and State, which had thrown Europe into confusion, 
had caused rivers of blood to be shed, had crowded prisons with 
innocent victims, and had driven the Pilgrims [he means Puritans] 
themselves, who were now engaged in this mistaken legislation, 
from all that was dear in their native homes." 

This is certainly very unwarrantable language, in reference to 
the subject-matter. Whatever we may think, or say, of subse- 
quent events, it is a grievous misuse of the vocabulary, to term 
this a " dangerous act," and a " viper in embryo." On the con- 
trary, it was the most natural, consistent, and just proceeding 
that could be imagined. 

1 Mass. Records, vol. i. p. 73. 



52 CHAETER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

The people who adopted this measure were a small company, 
who had come here with their families, their religious teachers, 
and their household goods, to form a settlement. We will 
leave out of our consideration here, their expatriation, their 
desire to enjoy the worship of God unmolested, and their sacri- 
fices for the accomplishment of their purposes. They were 
religious persons, deeply impressed with the importance of 
supporting the institutions of religion. They revered their 
teachers, looked to their wisdom for advice in temporal as 
well as spiritual things, and were bound to provide for them a 
support. If they had not done so, they would have been worse 
than the infidels. What more just, what less exceptionable, 
measure could they have adopted, than to assess, in such manner 
as to them seemed best, a tax upon themselves for that purpose? 
If they were content, there were no others who should object. 

We have, I think, in the character thus ascribed by this his- 
torian to this simple and just provision for the support of their 
religious teachers, the key to the difficulties wdiich afterwards 
arose between them and others, who, with different religious. views, 
instead of founding other settlements in the wilderness, where 
they could enjoy their liberty of conscience, after their own 
modes and forms, chose rather to claim a right to participate in 
the privileges of the Puritans, at the same time that they placed 
themselves in a very obnoxious antagonism to some of their 
most cherished principles. They intruded themselves into the 
Puritan Commonwealth, set up their standard of opposition to 
the principles and laws which they found there, and then com- 
plained, because the Puritans were not inclined to change their 
laws for the especial accommodation of their antagonists. 

I will consider this measure, as it developed itself afterwards, 
when I come to the question of their right of exclusion, and the 
manner in which they exercised it ; my object being, just now, 
to rescue this first act of religious legislation from the viperous 
metaphor, which, without sufficient provocation, attempts to 
fasten its fangs into it. 

One of the chief accusations against the Puritans, — per- 
haps the greatest of all, — one which comes with a curl of the 
lip, or a toss of the head, or some other significant manifestation 
to make it emphatic, arises out of the connection of their 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 53 

churches with the politics of the State, — a union of Church 
and State, as it has been called. At an early day, they passed 
a law by which none but church-members were to be admitted 
as freemen, so that the right of voting in the affairs of the com- 
pany, and of the government, as established by and in the cor- 
porate body, — the right of suffrage, — was confined to persons 
who were members of the Church. 

Persons who care very little how many Quakers and Ranters 
were hung, are very sensitive respecting the safeguards with 
which the Puritans surrounded the ballot-box. Had they not 
some reason for the adoption of a sure rule? 

Dr. Ellis, in his first lecture, stated that there is not in Boston, 
at the present day, any conceit, notion, fancy, or opinion, which 
did not exist soon after the settlement of Massachusetts; but 
I doubt, whether, among all the mischievous persons and all 
the preposterous notions of that day, there were any persons 
who maintained that there was such a thing as a natural right 
of suffrage; that is, a right hy nature, in every body, to partici- 
pate in the government of all others, as well as of themselves; 
that being the character of suffrage in a republican government. 
If there were any such, certainly the Puritans were not of their 
community. 

Well, undoubtedly, we should not select church-membership 
as a criterion by which to determine who should have the right 
of suffrage at the present day. It behooves us, however, to be 
very careful that we do not adopt something much worse. 

The law itself is in these words, " To the end the body of the 
freemen may he preserved of honest and good men : It is ordered. 
That henceforth no man shall be admitted to the freedom of this 
Commonwealth but such as are members of some of the 
Churches within the limits of this jurisdiction." 

Can we lay our hands upon our hearts, and say, that all our 
laws regulating suffrage have as wise and honest an object and 
purpose as that disclosed in this enactment ? 

Why should the enlightened people of this day and genera- 
tion denounce or censure the Puritans, because they regulated 
the right to participate in the government which they founded 
upon that basis? — upon a basis which, in their estimation, gave 
the suffrage to honest and good men, — exceptions, of course. 



54 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

Thank God, being a church-member is not evidence that a 
person has a had character, even in New York; although there 
may be exceptions which serve to show that such membership is 
not conclusive evidence of a good character, even in Massa- 
chusetts. 

Had not the Puritans the legal right to limit participation in 
their government, in that manner? Was it morally wrong in 
them to do so ? Was it unjust ? Was it inexpedient ? Unless 
we can answer some one, at least, of these questions emphati- 
cally in the affirmative, we convict ourselves, and not the Puritan 
Fathers, when we set ourselves up as censors, and condemn 
their legislation. 

As to the legal right, in the first place! If the exposition 
which has been given of the provisions of the charter has been 
satisfactory, I need not add any thing upon this subject. Noth- 
ing can be more clear than their right to judge and determine 
whom they would admit to the participation of the privileges 
under their charter. They were expressly authorized to admit 
freemen ; they were not to admit all comers. They must exer- 
cise a right of selection in some manner. 

Was it morally wrong to adopt their principle of selection ? 
With a concession of the principle that all rightful government 
should be for the greatest good of the community over which it 
is exercised, and that in a republican State, the question what 
measures will produce the greatest good must be determined by 
the majority of voices having the right of decision, I think I 
might venture the proposition, that any rule of suffi'age which 
such majority should conscientiously determine to adopt, as that 
best calculated to promote the welfare of the whole, whatever 
else might be thought of it, could not be censured as morally 
wrong. But some enthusiastic advocate of universal sufli'age 
might, perhaps, wish to be heard on that proposition ; so we 
will confine ourselves to the Puritan Commonwealth. 

Was it morally wrong in the grantees of the charter to deter- 
mine, that the greatest good of their organization would be best 
promoted by a limitation of that character? I certainly do not 
suppose, that any one who has a reasonable sense respecting 
moral right and wrong, will be disposed to argue that question 
with me. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 55 

They profess to have done it, '• to the end the body of free- 
men may be preserved of honest and good men." They are, at 
least, entitled to the credit of the motive on which they professed 
to act mitil that motive be disproved, and there is not the first 
particle of proof that they were not actuated by it. Admit 
that this rule did not assure to them the association of all the 
good and honest men in the community. Will any of you tell 
me what criterion they should have adopted, in their circum- 
stances, which would have given higher assurance of the accom- 
plishment of the worthy end which they proposed to themselves? 
If I should pause for a reply, I think none would be forthcoming. 

Was this rule unjust? Who at that day should impeach it 
on this score ? It was made by the grantees of a charter, and 
those whom they had admitted as associates, prescribing for 
themselves a limitation on which alone they would admit other 
associates. 

The charter was, as we have seen, in form, and partly in fact, 
an act incorporating a company to which a large grant of land 
had been made, and to which was given the power to purchase 
and hold property, and the power also to plant and govern a 
colony upon the territory thus granted. The charter gave them 
expressly, what at this day follows as a corporate right, without any 
express words, the right to admit whom they pleased as freemen of 
the corporation ; that is, as associates entitled to a participation 
in all their rights and privileges equally with themselves. They 
might have required a price for the privilege of an ownership in 
the lands and a participation in the franchise of the corporation, 
if they had thought proper. But money was no part of their 
object in the admission of freemen, or in voting for officers. 
They had not even arrived at that knowledge of the science of 
government which teaches that legislators may sell their votes 
in a caucus for the nomination of candidates for an office to 
which they hold the power of election, and then say that there 
was no bribery in that, because the nomination of the caucus 
was not an election. They might have required any other 
condition of membership which to them seemed just and right. 
Under these circumstances, who should advance a claim to thrust 
himself into a participation of their rights and privileges ? The 
question answers itself. No one, unless he could say, that they 



56 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

had held out to him a prospect of participation, and then refused 
it. No one said that this had been done, even by implication. 
The rule was adopted very soon after the settlement, and was 
known and understood. If there was any such individual case, 
it would not affect the principle. 

Was the rule inexpedient ? — is the remaining question. We 
might inquire here, on what principle of right it is that we are 
to judge and condemn them upon such a question. We may 
judge and express our opinion whether they acted wisely for 
their own interests, without assuming to censure them for their, 
judgment respecting a matter which, as it was then presented, 
was one affecting their rights, property, and duties. — But let us 
try this question also. In considering the three preceding ques- 
tions, I have treated them mainly as questions of right and of 
business in relation to a civil corporation. This presents itself 
in the same aspect ; but we must also take into consideration 
the religious character of the enterprise. 

And here there seems to be no possible room for doubt. It is 
true that it offered some temptation to persons to join the Church 
from sinister motives. Few persons, however, would venture, 
for secular reasons, to enter the pale of a church so strict in its 
observances ; and the sure support which the churches would re- 
ceive from the legislation of a General Court composed of their 
own members, would greatly overbalance any danger from hypo- 
critical members. 

This restriction of the privilege of freemen to persons who 
were members of the churches, is not to be regarded as evidence 
of intolerance or bigotry. Of itself, it required no profession of 
faith, — no creed. 

For the purpose of admission to a church, a person must have 
assented to the creed of that church very much as at the present 
day, so far as the Church has a creed. And so, through the 
operation of this rule, any person who was admitted to the privi- 
leges of a freeman, must have given his assent to the creed. 
But this assent to the creed, merely, was not the reason why he 
was admitted to the franchise. Somewhat more than assent to 
the creed was required, in order to admission to the Church. 
The candidate must be a person of good character, honest, and 
of a blameless life. It was to secure a body of men, of such a 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 57 

character, that this rule was adopted. And, moreover, church- 
membership was not of itself the sole qualification. 

The Plymouth Colony undertook to secure the same result in 
a different mode. It was enacted there, that the deputies should 
propound candidates to the court, being such as have been also 
approved by the freemen of the town where such persons live. 
Then it w^as required that they be propounded at a June court, 
and stand propounded one whole year. And in the Revision of 
the Laws of that Colony in 1671, we find that none should be 
admitted as freemen but such as were, at least, twenty-one years 
of age, had the testimony of their neighbors that they are of sober 
and peaceable conversation, orthodox in the fundamentals of re- 
ligion, with twenty pounds ratable estate, and to stand pro- 
pounded a year, unless it Avas some person well known, or of 
whom the court might make present improvement.^ 

Which would best satisfy the candidate for suffrage at the 
present day, — the Puritan, or Pilgrim rule, — Massachusetts, 
or Plymouth ? — more especially when there was another law of 
Plymouth by which freemen might be disfranchised, — a provi- 
sion which, if it existed at the present day, and were enforced, 
would cause a great exodus among the voters. — Even Rhode 
Island would not admit persons whom they considered turbulent 
and unruly, to ownership, or to exercise the privileges of 
freemen. 

Of itself, the rule did not prohibit immigration into the Colony. 
Whoever chose might come, notwithstanding the adoption of this 
rule. Persons ambitious of participating in the government 
might be influenced by it not to come ; but it would be their 
ambition which prevented them in such case. Persons might 
not desire to live under a government, with a religious legislation 
such as might be expected from such legislators ; but it would 
be the desire for a larger license which prevented them. The 
rule itself might be the remote cause; but another, operating 
more directly upon them, would intervene, and a maxim of the 
law teaches us to look to the near, and not to remote, causes, as 
the ground for complaint, if there be any. The rule denied to 
no one a participation in the protection which the government 
offered to persons and property. 

1 Plym. Col. Laws (Ed. 1836), p. 258. 



58 CHAETER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

But, still farther, all the alteration which Charles IL, or his 
ministers, required, in respect to the right of suffrage, when, in 
1662, he or they undertook to regulate the affairs of the Colony 
was, that " all the freeliolders, of competent estates, not vicious in 
conversation, and orthodox in religion (though of different per- 
suasions in church government) may have their votes in the 
election of all officers, civil and military." ^ Would this rule 
satisfy us better than church-membership ? The duty of making 
up the list of voters, on this basis, would not be an enviable one, 
at this day ; and an action for exclusion from the list might open 
a wide field of inquiry. 

The laws having for their object the conversion of the Indians 
to Christianity, were part and parcel of the religious legislation 
of the Colony. 

The laws for the observance of the Lord's day were very strict, 
and provision was early made for instructing the Indians on that 
subject. 

There were penalties for neglecting the worship of the churches, 
disturbing the order thereof, and for reproaching the ordinances. 

The law against Heresy provided, that " if any Christian within 
this jurisdiction shall go about to subvert and destroy the Chris- 
tian faith and religion, by broaching and maintaining any 
damnable heresies," of which there followed a very respectable 
catalogue, commencing with, " denying the immortality of the 
soul," " every such person continuing obstinate therein, after due 
means of conviction, shall be sentenced to banishment." 

Persons above sixteen years of age professing the Christian 
religion, might be punished for denying the inspiration of any of 
the books of the Old and New Testaments. 

But the introduction to the law against Heresy disclaimed all 
power over the faith and consciences of men. 

And in the proceedings respecting the celebrated Cambridge 
Platform, the General Court declared that they could not see 
light to impose any forms, as a binding rule, but gave their 
testimony to it. 

The Antinomian controversy was not merely a difference of 
opinion upon a speculative doctrinal question, but an open attack 
upon what was regarded as sound doctrine, in such a manner as 
1 Hutch. Coll. Papers, p. 379. 



CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 59 

to cause a commotion in the State, as is shown by the disarming 
of the followers of Wheelwright ; a measure which would not 
have been resorted to, but in fear of an outbreak. 

Another part of the religious legislation of the Puritans, upon 
which much vituperation has been expended, and many sneers 
wasted, is that regarding witchcraft. 

Are we all quite sure, that there was actually no witchcraft 
in the days of the Puritans ? 

We have, at this day, not only our rappings and tippings, 
our rope-tyings and our planchettes, but we summon spirits 
from the vasty deep, and, unlike those of Hotspur, they do come, 
bringing with them communications from the spirit-world, which 
must give us a very poor idea of heaven, if we suppose them 
to have come from that quarter. 

Is not the difference between this age and the former mainly 
in the fact, that witchcraft with us does not come on accu- 
sation ; but that our witches volunteer their manifestations, are 
quite willing to display their powers, and are thus far more kindly 
disposed than their predecessors, not having, as yet, taken to 
sticking pins into people ? 

For my own part, my imagination could just as easily mount 
an old woman on a broomstick, and set her careering through 
infinite space, as it could get up a conversation with General 
Washington about fly-traps, or with John Adams on the respec- 
tive merits of hair-dyes, or some other subject of even less sig- 
nificance. And when I give credence to all the supernaturals 
of our present time, I intend to believe also, unreservedly, in the 
Salem witchcraft! 

But, suppose we hold a little longer to the belief that the witch- 
craft of the former time was trickery and delusion ; upon what 
sound basis are we to single out the Puritans for condemnation? 

The legislation of the Puritans in regard to witchcraft was 
but the legislation of the age in which they lived, and with their 
respect for the Jewish law, they, of all people, must have had 
such legislation. 

In England, the law against witchcraft was enforced with as 
little doubt of its existence, and of its being a proper object of 
criminal cognizance, as prevailed in Massachusetts; and the exe- 
cutions there were much more numerous. 



60 CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 

Even the Plymouth Colony had its legislation against it; 
and if the witches had not thought that that small community 
offered too limited a field in which to exercise their vocation, I 
know no reason for believing that the good people there would 
not have enforced their laws against them. How should they 
have done otherwise ? 

Only a small portion of the people of Massachusetts, however, 
had any active participation in the prosecutions, and many made 
grave objections to them. 

The General Court appointed a special court for the trials ; 
and one at least of the judges of this court, and several of the 
justices, were much dissatisfied with the proceedings.^ Of the 
majority of the judges who were present, it may be said, that 
they had the belief in witchcraft, which that most eminent and 
upright judge, Sir Matthew Hale, entertained as firmly as they 
did ; and that they had quite as much evidence as was intro- 
duced in cases before him, in which he was instrumental in pro- 
curing convictions, on which he gave sentence of death, with a 
conscientious belief that he was doing good service to God and 
the State. He seems not to have wavered in this belief, to the 
day of his death. 

It has been suggested, that there was one physician in Massa- 
chusetts who, if his life had been spared, might, either by his 
professional skill or by his wise counsels, have done something 
to prevent or stay this lamentable delusion. It is a subject of 
profound regret that he should have died a year before his labors 
would have been so exceedingly useful. Those who were living 
" gave countenance and currency to the idea of witchcraft in the 
public mind, and were very generally in the habit, when a patient 
did not do well under their prescriptions, of getting rid of all dif- 
ficulty by saying that 'an evil hand' was upon him."^ Very 
convenient, indeed ! 

Roman Catholic priests and Jesuits were forbidden to come 
within the jurisdiction. 

The right of the colonial government to exclude persons 
actually settled in the Colony, existed from the power to make 

1 Thomas Brattle's Letter, Mass. Hist. Coll., 1st Series, vol. v. p; 75. Bentley's 
Description of Salem, ib., toI. vi. p. 266. 

2 Upham's Witchcraft at Salem Village, vol. ii. p. 3G1. 



CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 61 

laws, constitute courts and magistrates, and punish oifences. 
Banishment was a recognized mode of punishment; and this was 
their common penalty for grave offences against their religious 
polity. It was peculiarly adapted to a Commonwealth which 
was to be governed on religious principles, and to suppress the 
promulgation of religious doctrines inimical to its welfare. The 
Puritans desired to remove the disturbers of their peace ; and 
rriany, if not most of these, were religious controversialists. 

Difficulties, which ended in sentence of banishment, for offences 
against their religious legislation, arose in various ways. 

You will not be shocked, I trust, if I venture the supposition 
that there is nothing in the whole world on which conscience is 
so sensitive, or by which it is so grievously violated, as the com- 
pulsory payment of money to be appropriated towards any thing 
connected with religion. 

A man pays taxes, which he knows will be appropriated to 
the support of an unrighteous war for the acquisition of territory 
belonging to the Indians, or to some weaker nation ; for wasteful 
expenditure on public buildings, or corrupt purchases for the 
benefit of contractors, or for the transportation of patent medi- 
cines in the mail under the franks of members of Congress, — 
he shrugs his shoulders, but his conscience is quiet. Let him 
understand, however, that his tax is appropriated to the support 
of a minister of the gospel, who preaches some doctrine to which 
he does not assent, — be the difference but 

" the division of the twentieth part 
Of one poor scruple, — nay if the scale do turn 
But in the estimation of a hair," — 

his conscience immediately takes the alarm, and he becomes the 
subject of persecution. 

The Puritans being satisfied with the mode of supporting 
ministers by a tax, which we have seen was originally adopted 
at the first meeting of the Court of Assistants in the Colony, 
continued it by subsequent enactments. All inhabitants were 
assessed, proportionably to all charges in Church and Com- 
monwealth. If all the inhabitants had been as closely united 
in their religious sympathies as were the first emigrants, there 
could have been no objection to this, at least none of a con- 
scientious character. But this was impossible in the nature 



62 CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 

of things. Other emigrants came, with different tenets. It 
was, of course, impracticable to exclude all such, however great 
the caution might have been. Change of opinion must, also, 
have caused more or less of dissent. Difference of views caused 
opposition to the tax. The government disclaimed any right to 
interfere with the consciences of men, but insisted upon obedi- 
ence to the law as a civil duty. The recusants denied the 
authority of the magistracy to enforce the commands of the first 
table, and made speeches against it. The magistrates alleged 
that this was not only unsound in doctrine, but endangered the 
authority of the civil State. The recusants preached. The 
magistrates banished. The recusants insisted that they were 
persecuted for their principles. The magistrates averred that 
they were punished for their practices. 

Two questions may arise here. First, — Whether this was a 
tax for the support of religious doctrines, or one for the support 
of the civil State through the agency of religious teaching. If 
the first, then, by its enforced collection, conscience was violated. 
If the latter, then, by a refusal of payment, a rightful civil law 
was defied. Second, — Whether the speeches which were made, 
were the dictates of conscience, which required a testimony of 
that character against the enormities of the law, — or the utter- 
ances of the mere human will, determined to gratify its own wil- 
fulness, and, if possible, to retain the money in its own pocket. 

These questions, as the lawyers would say, may be regarded 
as exceedingly nice, — questions about which men may argue ; 
and, like the village schoolmaster, " e'en though vanquished," 
they may " argue still." 

As I am not one of those who can 

" distinguish and divide 
A hair, 'twixt south and south-west side," 

I must leave it to the casuists of the next two centuries to deter- 
mine whether or not the institutions of religion may be such a 
support to the civil State, that a tax, by the State, to sustain 
them, can be regarded as a mere civil regulation, violating no 
man's conscience, even if the money be applied to the main- 
tenance of teachers who differ from him, — whether or not the 
religious doctrine and the civil support may be regarded as so 
far distinct, that the civil magistrate may tax on the ground of 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 63 

the civil right, and the party pay without interference with the 
religious right. Whatever opinions may be entertained, the 
Puritans, I think, took, substantially, that distinction, and their 
rule, thus stated, survived the Colony, lived through the Province, 
was incorporated into the Constitution of 1780, withstood the 
efforts of two Constitutional conventions for its abrogation, and 
yielded at last, more than two centuries after its first intro- 
duction. 

It is a matter of recent history, that a republic founded upon 
a substratum of infidelity has but a short existence. The dura- 
tion of one which shall disclaim the support of religious teach- 
ings, and rely upon the intelligence attendant upon universal 
suffrage, and the purity derived from a universal scramble for 
office, is a problem which has not yet received its solution. 

But to leave the Puritans here would not be doing them jus- 
tice on this subject. They have been charged with inconsistency, 
and persecution, in reference to these proceedings. 

Mr. Benedict, just quoted, says further of the original order 
for the maintenance of the ministers, — 

" From these resolutions on board this floating vessel, which by subse- 
quent acts became a permanent law, subjecting every citizen, whatever 
was his religious belief, to support the ministry of the established church, 
and to pay all the taxes which the dominant party might impose for their 
houses of worship, their ordinations, and all their ecclesiastical affairs, pro- 
ceeded the great mistake of the Puritan Fathers. And from the same 
incipient measure grew all the unrighteous tithes and taxes, the vex- 
atious and ruinous lawsuits, the imprisonment and stripes of the multi- 
tudes who refused to support a system of worship which they did not 
approve." 

After other remarks of a similar character, he adds, p. 369, — 

" The most charitable exposition we can give of this unpleasant subject 
is, that good men with bad principles were led astray ; that although they 
were driven by persecution from their native land, and here intended to 
form an asylum for the oppressed who should fly to them for shelter, of 
every nation and of every creed ; yet from the strength of habit, and the 
general opinions of mankind, in that age, they dare not leave tiie sacred 
cause to its own inherent influence ; and the spirit of the times, rather 
than the disposition of the men, hurried them forward to those persecuting 
measures which have fixed an indelible stain on their otherwise fair 
name." 



64 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

Assuming the matter to be one involving a question of con- 
science, this might be true, if they intended to form an asylum 
for persons of all creeds, to come and promulgate all doctrines, 
even to denunciation of their own most cherished principles. 
But the fact being shown to be just the reverse of all this, the 
allegation of persecution fails, along with that of inconsistency. 

A man persecutes nobody, by defending his own from en- 
croachment. The lands within their chartered limits were theirs. 
The government was theirs. The faith and modes of worship 
were theirs. Under their grant from the Council at Plymouth 
and their charter from the Crown, they secured to themselves, as 
we have seen, substantially a fee-simple in their lands, which 
they could protect against all encroachments. They endeavored 
to secure to themselves, also, a theologic fee-simple, so to speak, 
or at least a life-estate, and they were exceedingly tenacious of 
this, and more sensitive to trespasses upon it than to trespasses 
upon property, in the proportion that the concerns of religion 
held a higher place in their estimation than mere temporal affairs. 
There was little temptation to commit trespasses upon their tem- 
poral fee. But there were other zealots besides themselves, who 
were quite desirous of becoming tenants in common, at least, 
if not disseisors, of their ecclesiastical fee. The attempt was 
promptly met, first by warning off; and when that failed, by an 
ecclesiastical action of trespass, resulting in a fine ; and when that 
failed, by a process of ejectment, called a sentence of banishment. 

It would be but upon a very superficial view of the subject, to 
say, that they had no right to do this, and that it was inconsist- 
ent with their position in England. The Puritans in England, 
like others there who dissented, were mostly natives of the soil : 
they had natural rights there, — a right to form their opinions 
upon religious subjects, equally with all other inhabitants of that 
country ; an equal right to express them peaceably ; a right 
to adopt their creed and forms of worship, according to the 
dictates of their consciences (even if the government might tax 
them) ; and a right to the protection and support of the govern- 
ment, in the enjoyment of their rights and liberties. That was 
their country, their home : there were their families, and their 
relatives, friends, all their associations. They had no other 
place in which to enjoy their rights. Members of the Church of 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 65 

England had the same natural rights, and no more. Other dis- 
senters from her doctrines had the same rights, and no less. The 
Church of England, claiming to be established by law, required 
conformity to her creed and usages and forms, in matters deemed 
by others essential errors ; and hence violation of conscience, and 
persecution. 

It was open to all who might be able, to escape from this per- 
secution. It was natural that those who attempted it should 
associate for the purpose. The Puritans did so, — provided for 
themselves a place of refuge in the wilderness, and obtained a 
charter of government. This was emphatically for themselves 
and those who sympathized with them, and not for others. The 
creeds, modes, and forms of others who dissented, were as ob- 
noxious to them as those of the Hierarchy. They were not 
required by any principle of religion, or morals, or comity, or 
benevolence, to provide for a theologic warfare against themselves 
and their cherished opinions on the western shore of the Atlantic; 
and they did not do it. They did not profess toleration. Why 
should they ? With a perfect conviction that they were right, 
of course others were wrong. And error was fatal ! We have 
as little of toleration at the present time, in relation to some other 
things, and with less excuse. Others who came were bound to 
respect their religious, equally with their civil, institutions. There 
was no persecution in their attempt to maintain them, by the 
exclusion of those who could be restrained in no other way. 
No one had a right to come and set up an opposition, and 
plead " conscience." That plea was open to a general demurrer. 
"What of that!" You have no right to bring such a con- 
science here. 

I submit that the argument is unanswerable, and a full justifi- 
cation of the general principle upon which the Puritans acted. 
We may think their creed too narrow. There was, doubtless, 
mistake, anger, error, excess, wrong, in individual cases. I seek 
not to justify such things. All I claim is a vindication of 
the legal and moral right of the Puritan Fathers to govern their 
own Commonwealth, the child, of their labors, ol their prayers, 
of their hopes, and of their fears also ; and to exclude others, who 
could not join in fellowship with them, from the enjoyment of 
their privileges, without being accused of persecution. 

5 



66 CHAKTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

"Whether their ecclesiastical right could stand on this founda- 
tion for more than one or two generations, is another and a dif- 
ferent question. It would, certainly, not be a very long period 
before those who had been born on the soil would have as great 
a right of non-conformity to the existing state of things, as the 
Puritans had in England, and upon similar grounds. They had, 
in fact, no theologic fee-simple, and could not transmit an inherit- 
ance in any exclusive right. They had nothing more than a life- 
estate, in this respect. 

But the matter was not suffered to develop itself in that way. 
The theologic trespassers brought it to a more direct and speedy 
issue. 

The members of the Church of England seem to have left the 
Puritan Fathers in the undisturbed enjoyment of their rights. 
They neither sought nor were involved in any controversy with 
them here, in the early settlement, unless the controversy respect- 
ing the charter had that aspect. 

With the exception of the Quakers, the Anabaptists were the 
most prominent in this religious aggression. 

In 1639, several persons were fined for attempting to gather a 
small company of believers. 

A law for the banishment of Anabaptists was passed in 1644, 
with a preamble giving them a very bad character.^ 

" The heart-rending sufferings which were inflicted on John 
Clark, Obadiah Holmes, and others " (so Benedict characterizes 
the affair), in 1651, may serve to illustrate the spirit of the times. 
Clark, Holmes, and John Crandall, " representatives of the church 
at Newport," Rhode Island, came to Lynn and held a meeting 
at the house of a brother, on the plea that he was too old to go 
to Newport. Benedict says, " The circumstance of these men 
being representatives, leads us to infer that something was de- 
signed more than an ordinary visit." Undoubtedly! They came 
to do what they knew was a violation of the laws of Massachu- 
setts. — The constable came, as might have been (probably was) 
expected, broke up the meeting, arrested, and took them to the 
ale-house, or ordinary, and being, evidently, a man zealous in the 
faith, and doubtless supposing that the meeting-house was a more 
suitable place than the ale-house for such people, — wishing also, 
1 Mass. Records, vol. ii. p. 85. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 67 

probably, that they should hear a little sound doctrine, — he pro- 
posed, at dinner, if they were free, to take them to the meeting. 
They replied, " We are in thy hand ; and if thee will take us to 
the meeting, thither will we go." But they informed him further, 
" If thou forcest us into your assembly, then shall we be con- 
strained to declare ourselves, that we cannot hold communion 
with them." The zealous constable did not care for that, and so 
to the meeting they went. Taking off their hats at the threshold, 
when they were seated they put them on again, and Clark opened 
his book and fell to reading. The constable, by order of a magis- 
trate, took off their hats. When the preaching and praying were 
over, Clark, as a stranger, stood up and desired to say a few things 
to the congregation. The preacher said, we will have no objec- 
tions to what has been delivered. But Clark must explain his 
gesture of dissent (putting on his hat) ; and the explanation being, 
substantially, that to conjoin and act with them would be sin, and 
that he could not judge that they were gathered together and 
walked according to the visible order of the Lord, he was told he 
had said and done that which he must answer for, and was 
silenced. Shortly after, they were tried ; and, according to the 
account, his defence embarrassed the judges. Clark says, — 

" At length the Governor stepped up and told us we had denied infant 
baptism, and, being sonaewhat transported, told me I had deserved death, 
and said he would not have such trash brought into their jurisdiction ; 
moreover he said, you go up and down and secretly insinuate into those 
that are weak, but you cannot maintain it against our ministers. You 
may try and dispute with them." 

They were fined, and refusing to pay were imprisoned. But 
Clark caught at the last remark of the Governor, as if it were a 
challenge to a debate, and the next morning sent a formal accept- 
ance, with a request that a time might be named ; shrewdly pre- 
facing it with, " Whereas it pleased this honored court yesterday 
to condemn the faith mid order ^ which I hold and practise," — so 
that the dispute might be upon his faith and order. The magis- 
trates were not to be caught in that way, but inquired whether 
he would dispute upon the things contained in his sentence, &c. 
" For," said they, " the court sentenced you not for your judg- 
ment and conscience, but for matter of fact and practice." Clark 
replied, " You say the court sentenced me for matter of fact and 



68 CHAETER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

practice ; be it so. I say that matter of fact and practice was but 
the manifestation of my judgment and conscience, and I make 
account, that man is void of judgment and conscience, that hath 
not a fact and practice suitable thereunto." 

The magistrates saw, doubtless, that the debate would involve 
his faith and his conscience, and, if allowed, that he would gain 
the opportunity which he desired, of promulgating his doctrines 
under their permission, and therefore protection, and declined to 
allow it. Clark's friends paid his fine, and he was discharged. 

But Clark, as Benedict says, " knowing that his adversaries 
would attribute the failure of it [the debate] to him," immedi- 
ately on his release drew up an address, reciting, that through the 
indulgency of tender-hearted friends, without his consent, and 
contrary to his judgment, the sentence had been satisfied and a 
warrant procured by which he w^as secluded the place of his im- 
prisonment^ by reason whereof he saw no call but to his habita- 
tion ; yet, lest the cause should suffer, he signified that if it should 
please the magistrates, or the General Court, to grant his former 
request, he should cheerfully embrace it, and come from the island 
to attend to it. 

The magistrates replied, that they conceived he had misrepre- 
sented the Governor's speech in saying he was challenged to 
dispute, adding, — 

"Nevertheless, if you are forward to dispute, and that you will move it 
yourself to the court or magistrates about Boston, we shall take order to 
appoint one who will be ready to answer your motion, you keeping close 
to the questions propounded by yourself; and a moderator shall be ap- 
pointed also to attend upon the service ; and whereas you desire you 
might be free in your dispute, keeping close to the points to be disputed 
or without incurring damage by the civil justice, observing wliat hath 
been before written, it is granted ; the day may be agreed if you yield 
the premises." 

Clark took exception to the answer, and repeated his former 
motion, saying, if the General Court should accept it, and, under 
the secretary's hand, should grant a free dispute without moles- 
tation or interruption, he should be well satisfied. Benedict 
says, " Mr. Clark all along kept in view the law which had been 
made seven years before, which threatened so terribly any one 
who should oppose infant baptism. This was the reason of his 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 69 

requesting an order to dispute in legal form." And he adds, 
" Mr. Clark, therefore, left his adversaries in triumph." Again, 
" So completely was he at home in the baptismal controversy, 
that he was evidently as desirous for the public discussion, as 
his opponents were to avoid it." 

Thus it was that Mr. Clark returned to his habitation, a " per- 
secuted " man, who had endured " heart-rending sufferings." ^ 
Judging from the fact that he came willingly and knowingly ; 
that he was nothing loath to be forced to go to a meeting where 
he should be constrained to declare his dissent; that he used 
the trial to make an open defence of his doctrines ; that he 
was so anxious to debate the matter afterwards with the minis- 
ters, if he could have a clear field without danger of the law ; 
and that he finally left his adversaries in triumph ; — it is at least 
an open question, whether the persecution was not more in the 
avoidance of the public free debate, than in the fine, and im- 
prisonment for non-payment. He seems in all this to have had 
an eye to the things temporal, in regard to his controversy with 
Mr. Coddington, perhaps quite as much as to things spiritual.^ 

Clark carried his complaints to England;^ and Sir Richard 
Saltonstall wrote to Cotton and Wilson, the ministers at 
Boston, — 

" It doth not a little grieve my spirit to hear what sad things are re- 
ported daily of your tyranny and persecutions in New England, as that 
you fine, whip, and imprison men for their consciences. First, you com- 
pel such to come into your assemblies, as you know will not join 3^ou in 
your worship ; and when they show their dislike thereof, or witness 
against it, then you stir up your magistrates to punish them for such (as 
you conceive) their public affronts. . . . We pray for you, and wish you 
prosperity every way ; hoped the Lord would have given you so nincli 
light and love there, that you might have been eyes to God's jieople here, 
and not to practise those courses in a wilderness, which you went so far 
to prevent. These rigid ways have laid you very low in the hearts of 
the saints. I do assure you, I have heard them pray in the public assem- 
blies, that the Lord would give you meek and humble spirits, not to strive 
so much for uniformity, as to keep the unity of the spirit in the bond of 
peace." 

1 Benedict, pp. 371-375 ; Backus's Hist, of New England, vol. i. pp. 2U-228. 

2 See Palfrey, Hist. N. E., vol. ii. p. 359. 

3 III News from New England, Mass. Hist. Coll. 4th Series, vol. ii. pp. 3, 27. 



70 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

Mr. Cotton, answering "for Brother "Wilson and self," said of Holmes, 
" As for his whipping, it was more voluntarily chosen by him than in- 
flicted on him. His censure by the Court, was, to have paid, as I know, 
£30, or else be whipt ; his fine was offered to be paid by friends for him 
freely, but he chose rather to be whipt ; in which case, if his suffering of 
stripes was any worship of God at all, surely it could be accounted no 
better than will-worship." . . . 

To the other paragraph above quoted, he replied, " You know not, if 
you think we came into this wilderness to practise those courses here, 
which we fled from in P^ngland. We believe there is a vast difference 
between men's inventions and God's institutions ; we fled from men's in- 
ventions to which we else should have been compelled ; we compel none 
to men's inventions. If our ways (rigid ways as you call them) have 
laid us low in the hearts of God's people, yea, and of the saints (as you 
style them), we do not believe it is any part of their saintship. Never- 
theless, I tell you the truth, we have tolerated in our churches some 
Anabaptists, some Antinomians, and some seekers, and do so still at this 
day. We are far from arrogating infallibility of judgment to ourselves, or 
affecting uniformity ; uniformity God never required, infallibility he 
never granted us." ^ 

These proceedings serve well to illustrate not only the religious 
legislation and civil administration of that period, but the spirit 
and temper of all parties. The Bible was the guide of the Puri- 
tans, and their law. Their legislation was founded upon it. Com- 
pelling men, therefore, to conform to their laws, was compelling 
them to conform, not to men's inventions, but to God's institu- 
tions. 

The proceedings in reference to the " Quakers and Ranters " 
come under consideration, as a part of the religious legislation 
of the Puritan Commonwealth ; and notwithstanding the matter 
has been discussed with great ability and research by Dr. Ellis, 
in the third lecture of this course, it may be proper for me, as it 
comes also within the scope of my subject, to say a few words 
upon it, instead of passing it by with a mere recognition. 

Polonius, along with other very good advice to his son, Laertes, 

counselled him to — 

" beware 
Of entrance to a quarrel : but, being in, 
Bear't, that the opposed may beware of thee." 

1 See the letters entire, Hutch. Coll. Papers, pp. 401-407. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 71 

The people of Rhode Island happily acted upon the first part 
of this maxim, in reference to the Quakers who came among 
tnem. Had the Puritans done the same, it is probable that the 
nuisance would have been equally harmless in Massachusetts. 
But such a forbearance would have been wholly at variance with 
their principle of excluding disturbers of their peace, and with 
their practice of rigidly enforcing their laws. They entered, there- 
fore, upon the quarrel sought to be fixed upon them, with an 
energy that made it apparent they were not unmindful of the 
principle embodied in the latter part of Polonius's advice. 

With a commendable moderation in the outset, they evinced 
a rigid determination to maintain their authority. They warned, 
they sent away, they fined, they whipped, they imprisoned, and 
branded. When these more usual punishments failed, ears (not 
many of them) were cut off. This cruel, but in England, at that 
day, not very unusual, punishment was inefficient also. Then 
came banishment, with a condition annexed, that a return with- 
out permission was on pain of death. And when all else was 
utterly ineffectual, the penalty of death was inflicted. 

The Federal Commissioners of the four colonies (Massachu- 
setts, Plymouth, Connecticut, and New Haven), at their annual 
meeting in 1656, had recommended that such persons, if any 
come, should be forthwith secured or removed out of all the 
jurisdictions. When, two years afterwards, it was found that 
punishments of the milder character were of no avail, the 
Federal Commissioners propounded and seriously commended to 
the several General Courts to make a law of the precise char- 
acter of that under which Massachusetts inflicted the extreme 
penalty .1 In other instances, prior to this time, parties had been 
banished with a like condition, and there had been no instance 
of a violation of it. So it was believed would be the case in this 
instance. But here was a different class of offenders, — fanatical, 
or self-wifled, — self-devoted to their will. We may call it con- 
science, but it was conscience as defined by the Indian, " Some- 
thing here [laying his hand on his breast], which says, ' I won't.' " 
We may caU it insanity ; but, if insanity, it was of the same 
self-willed character. 

1 Palfrey, Hist, of New England, vol. ii. p. 469. John Winthrop, of Connecticut, 
attached a qualification to his subscription. 



72 CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 

It is quite possible that something of human passion may- 
have been excited in the magistrates of the Colony by this wanton 
contempt of their right and their authority. But mischief arising 
from mere contempt, — still less, resentment and passion conse- 
quent upon such contempt, — could furnish no justification for 
proceeding to the last extremity. In that view the most that 
could be said in extenuation would be, that there was a success- 
ful courting of martyrdom by a series of persistent efforts, and 
under circumstances which rendered it next to impossible for the 
government to refuse the crown. That the Quakers, supposing 
them to be sane, richly deserved any suitable punishment for dis- 
turbing the peace, is not to be doubted. 

The cry of persecution of the Quakers by the Puritans has 
been long and often repeated. It is within a few days, that I 
saw, in a notice of a sombre work, entitled " New-England 
Tragedies," this paragraph : " They [the Puritans] persecuted the 
Quakers with immense zest and activity ; but it cannot be 
denied that the Quakers gave great provocation." 

Now I take a direct issue with the first part of this allegation, 
and with all other averments that the Puritans of Massachusetts 
persecuted the Quakers. Let us bear in mind that it was not 
for non-conformity that the Quakers were prosecuted ; and let 
us understand the significance of the terms we use. What is 
persecution ? If we turn to the great ^vork of our late learned 
and most worthy associate, Dr. Worcester, we shall find a satis- 
factory definition ; and tried by that standard, or by any other 
entitled to regard, I maintain, without hesitation, that so far from 
the Puritans persecuting the Quakers, it was the Quakers who 
persecuted the Puritans. Pardon me, if I consider this some- 
what in detail. 

There was no pursuit either " with malignity or enmity " in 
the proceedings of the magistrates, even if anger occasioned by 
such persistent annoyance may have been excited. The Puritans 
did not " harass " the Quakers " with penalties." The Quakers 
harassed the Puritans, and the Puritans inflicted penalties for the 
transgression of their laws, as other communities inflict penalties 
for transgressions. There must be something more than this to 
constitute persecution, or the tenants of our state prisons may 
cry out, persecution I So again, it was not the Puritans who 



CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 73 

" afflicted," " distressed," " oppressed," and " vexed," the Quakers, 
on account of their opinions ; but the reverse of all that. 

Wenlock Christison, the last person upon w^hom sentence of 
death was passed, is reported by Sewell, in his History of the 
Quakers, to have said to the court, " If ye have power to 
take my life from me, God can raise up the same principle of 
life in ten of his servants, and send them among you in my 
room, that you may have torment upon torment, which is your 
portion ; for there is no peace to the wicked, saith my God." 
That states the truth of the matter, so far as persecution is con- 
cerned. The Puritans had no peace, but " torment upon 
torment " from the Quakers. 

The only reasonable question which can arise, is. Were the 
Puritans justified in the infliction of the extreme penalties? 
That the Quakers harassed, afflicted, distressed, oppressed, and 
vexed them, may not be a sufficient justification for that. 

Was there danger to the Puritan Commonwealth, — danger 
of its overthrow, — danger of the subversion of the principles 
upon which it was founded ? Every other expedient to rid 
themselves of the nuisance had been tried in vain ; and this 
punishment was denounced as the penalty for a return from 
banishment, in the hope and expectation that its terror would be 
effectual, and render its infliction unnecessary. 

When this proved otherwise ; when their principles were 
denounced, their authority derided and defied, their peace dis- 
turbed, and they were dared to carry into execution their 
own decrees, — if there was danger to their institutions, what 
course ought the magistrates to have adopted ? 

The Quakers courted death, if the Puritans dared to inflict it. 
They despised and rejected the mercy which would have saved 
them. Assuming that they were sane, however much we 
may lament the occurrence, why should we waste our .sym- 
pathies on them, if, by their proceedings, they endangered the 
Commonwealth into which they intruded ? It is said now, that 
they were more fit subjects for an insane hospital than for any 
of the punishments which were inflicted. If they were insane, 
we cannot hold the Puritans responsible because we have dis- 
covered that fact two centuries afterwards. There was no such 
supposition at the time, neither was there an insane hospital. 



74 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

Great odium has been cast upon the law and its administra- 
tion, in the infliction of those extreme punishments, and upon 
the clergy, so far as they participated. I submit, whether the 
responsibility is not chargeable rather upon the lamentable state 
of medical science at that time, which, while busying itself 
with catnip and elecampane, millipedes and powder of baked 
toads, had not discovered that there was any other form of 
mental disease than that which manifested itself in a furious 
derangement. How should lawgivers, judges, and jurors, or 
clergymen even, ascertain the fact of insanity, — a matter so 
foreign to their ordinary studies, — when the studies and diag- 
nosis of the physician failed to perceive it. Medical science at a 
much later day, under the lead of jurisprudence, has redeemed 
its character. The medical profession having left the investiga- 
tion of the virtues of baked toad-powder for that of the phe- 
nomena of mental disease, the law seeks information on that 
subject, in aid of its administration. 

Medical testimony is heard on the question, sane or insane ? 
Medical experts give their opinions, and the interests of 
humanity are subserved, and the cause of justice often pro- 
moted; though it must be acknowledged, that the notion of 
mental derangement is carried to an extreme, when a jury finds 
a defendant sane the moment immediately before, and sane 
again the moment immediately following, the commission of a 
very deliberate homicide, but insane at the precise moment 
when the deed was committed. I admit that the Bench deserves 
censure, when it fails to rebuke such a perversion of principles. 
But it would be unreasonable to expect too much from a judi- 
ciary elected by a popular vote, and whose tenure of office is for 
a short term of years. 

Upon the question whether their institutions were endangered 
by the Quakers, the Puritans are entitled to be heard. 

In a humble petition and address of the General Court, pre- 
sented to the King in February, 1660, it is, among other things, 
said, — 

" Concerning the Quakei's, open, capital blasphemers, open seducers 
from the Glorious Trinity, the Lord's Christ, our Lord Jesus Christ, &c., 
the blessed Gospel, and from the Holy Scriptures as the rule of life, 
open enemies to government itself as established in the hands of any 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 75 

but men of their own principles, malignant and assiduous promoters of 
doctrines directly tending to subvert both our churches and state ; after 
all other means, for a long time used in vain, we were at last constrained, 
for our own safety, to pass a sentence of banishment against them, upon 
pain of death. Such was their dangerous, impetuous, and desperate 
turbulency, both to religion and to the state, civil and ecclesiastical, as 
that, how unwilling soever, could it have been avoided, the magistrate at 
last, in conscience both to God and man, judged himself called, for the 
defence of all, to keep the passage with the point of the sword held 
toward them. This could do no harm to him that would be warned 
thereby ; their wittingly rushing themselves thereupon was their own act, 
and we, with all humility, conceive a crime bringing their bloods upon 
their own head." ^ 

Assuming this representation to be true, the colonists must 
stand excused. 

Dr. Palfrey says, — " Imprudently calculating on the effect of their 
threats, the Court had placed themselves in a position which they could 
not maintain without grievous severity, nor abandon without humiliation 
and danger. For a little time there seemed reason to hope that the law 
would do its office without harm to any one." 

Again, — " Whether or not their imaginations had exaggerated the 
original danger, it could no longer, after an experiment of more than three 
years, be justly considered great." 

And again, — " But among the colonies of New England, it is the unhappy 
distinction of the chartered — and therefore at once more self-confident and 
more endangered — colony of Massachusetts, to have been the only one 
in which Quakers who refused to absent themselves were condemned to 
die. Her right to her territory was absolute, deplorable as was the 
extreme assertion of it. No householder has a more unqualified title to 
declare who shall have the shelter of his roof, than had the Governor 
and Company of Massachusetts Bay to decide who should be sojourners 
or visitors within their precincts. Their danger was real, though the 
experiment pi'oved it to be far less than was at first supposed. The 
provocations which were offered were exceedingly offensive. It is hai-d 
to say what should have been done with disturbers so unmanageable. 
But that one thing should not have been done tiU they had become more 
mischievous, is plain enough. They should not have been put to death. 
Sooner than put them to death, it were devoutly to be wished that the 
annoyed dwellers in Massachusetts had opened their hospitable drawing- 

1 Mass. Records, vol. iv. part i. p. 451. 



76 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

rooms to naked women, and suffered their ministers to ascend the 
pulpits by steps paved with fragments of glass bottles." ^ 

But if the danger of the civil Commonwealth was not extreme, 
that of the religious government connected with it was im- 
minent. If the Quakers might contravene and defy the laws 
which protected the religious institutions and worship of the 
Puritans, all others might do the same. Their peculiar religious 
government was thus in extreme peril. With regard to that, 
the controversy was preservation or destruction ; and the result 
was the latter. 

The infliction of the punishment of death did not avail The 
Quakers had an indomitable perseverance, and much encourage- 
ment to continue the contest. The law inflicting this penalty 
had passed but by a majority of one. There was much opposi- 
tion to its execution. The military guard shows the fear which 
existed of an outbreak. The opposition was such that the gov- 
ernment gave up any farther attempt to execute the extreme 
penalties. The Quakers came in greater numbers, and com- 
mitted greater extravagancies. The government mitigated the 
penalties, and finally submitted to the intrusion. The Quakers 
triumphed; — and the experiment of the Puritans, — the theo- 
logic freehold, — the Commonwealth which was to exclude un- 
sound doctrine and practice, — failed then and there, — and, so 
far as we can perceive, from that time forth, for evermore. 

The civil government did not fail, the religion did not fail; 
but the principle of the legal exclusion of error received a fatal 
blow. 

The failure was not merely because the Quakers had con- 
quered, but by reason of the causes through which they had 
conquered. 

I quote from Dr. Palfrey once more, p. 482, — 

" It was settled that the Governor and Company of Massachusetts Bay 
were not to liave the disposal of their home. They had bought it, and 
paid dear for it. They had on their side that sort of rigid justice which 
accredited writers recognize, when they lay down the rule that a perfect 
right may be maintained at any cost to the invader. But trespassers had 
come who would not be kept away, except by violent measures, which had 

1 Palfrey's New England, vol. ii. pp. 474, 476, 484. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 77 

produced only a partial effect, and which the invaded could not prevail 
upon themselves any longer to employ. The feeling of humanity, vphich 
all along had pleaded for a surrender, at length uttered itself in overpower- 
ing tones." 

And Sir Ferdinando Gorges, in his " Brief Narration of the 
Original Undertakings of the Advancement of Plantations into 
the Parts of America," published in 1658, speaking of the char- 
ter, says, — 

" B}^ the authority whereof the undertakers proceeded so effectually, that 
in a very short time numbers of people of all sorts flocked thither in heaps, 
that at last it was specially ordered by the King's command, that none 
should be suffered to go without license first had and obtained, and they 
to take the oaths of supremacy and allegiance. So that what I long be- 
fore prophesied, when I could hardly get any for money to reside there, 
was now brought to pass in a high measure. The reason of that restraint 
was grounded upon the several complaints, that came out of those 
parts, of the divers sects and schisms that were amongst them, all con- 
temning the public government of the ecclesiastical state. And it was 
doubted that they would, in short time, wholly shake off the royal juris- 
diction of the Sovereign IMagistrate." ^ 

We can see now that it was impossible that their peculiar re- 
ligious institutions, — " God's institutions," as Mr. Cotton called 
them, — should be maintained for a long period against the influx 
of population " contemning the public government of the eccle- 
siastical state" here: we can see that it would have been better, 
(to use a common form of speech^ infinitely better, had they vol- 
untarily yielded to the pressure, at an earlier day, and quietly 
submitted to a modification of their religious establishment, giving 
greater liberty for dissent, and more tolerance to opposition. The 
civil state can hardly be said to have been in danger of over- 
throw. It may not have been wise, it may not have evinced 
sound statesmanship, for them to attempt to maintain their 
experiment against the intrusion of the Quakers, considering the 
opposition which was made to it. 

If, under the existing circumstances, they saw the impending 
inevitable consequences, they cannot be held excused in sacrificing 
life to the end that their church polity might be vigorously en- 
forced for a little time, only to be overthrown within a short 

1 Mass. Hist. Soc. CoU., 3(1 Series, toI. vi. p. 80. 



78 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

period. Anger and passion, under great provocation, can afford 
at best but palliation. 

But, assuming that there was no danger to their civil govern- 
ment, the principle which lay at the foundation of their whole 
government, civil as well as ecclesiastical, — the principle of 
excluding what they deemed fundamental error in religion by the 
civil arm, — was on trial ; and if, on the other hand, they might 
well believe, and did believe, that God's institutions committed 
to their charge could be sustained, error excluded, their peace 
preserved, and their peculiar Commonwealth maintained, by the 
rigid enforcement of their laws, even unto death, the danger 
which menaced their institutions from the proceedings of the 
Quakers must hold them excused. On what authority shall we 
pronounce that they must have seen the first, and could not have 
acted upon the last, of these propositions? 

Their Commonwealth was one of small beginnings. If it 
could have been kept a small Commonwealth, — distinct and 
independent, its religious legislation enforced as it might have 
been under such circumstances, — it would, doubtless, have pre- 
served its original constitution much longer; and with their 
knowledge of the mutability of human affairs, they could not 
have anticipated that it was to endure for all generations. They 
were authorized originally, by the circumstances to which I have 
referred, to anticipate for it a reasonable duration, and they were 
men who could commit to God's providence the ordering of the 
future. The extract from Sir Ferdinando Gorges' " Brief Narra- 
tion " shows that they did not anticipate that the example of their 
emigration would be followed by such a numerous company of 
men, who, of divers sects and with divers schisms, " contemning 
the public government of the ecclesiastical state, " claimed liberty, 
not so much to worship God according to the dictates of their 
consciences, as liberty not to worship Him at all. 

There is a grave question, I think, not as yet sufficiently con- 
sidered, how far writers of fiction, whether of prose or poetry, 
are at liberty to represent historical personages otherwise than on 
the basis of historical truth. 

If the fiction be like Irving's Knickerbocker's New York, — a 
burlesque so transparent that no one is for a moment misled, — 
there is no harm done. But if the tale or poem be of that 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 79 

character that no one but an expert in history can distinguish 
between the true and the false, the fact and the fiction, very 
serious injury may be, in many instances will be, done to the 
reputation of those who have bequeathed that reputation to 
posterity, in the hope that it may be preserved untarnished. 
More especially is this true, if, the prologue says, — 

" the author seeks and strives 
To represent the dead as in their lives." 

It is well for the author of the " New-England Tragedies " 
that the Puritan laws are no longer in force, else he might be 
called to answer, not only for that he did — 

" perchance misdate tlie day and year, 
And group events together by his art, 
That in the Chronicles lie far apart," 

but that he did, moreover, interpolate matter which had 
neither day, nor year, nor chronicle, in point of fact, thereby 
giving false impressions respecting the truth of history. 

The relation of events in their order is one of the first of the 
requisites of history. Not only the year, but sometimes the very 
day in which a thing is done, is of the utmost importance to a 
right understanding of the character of men, and of their acts 
also. 

It is not an immaterial matter, whether the Puritans forbore, 
at last, to proceed capitally against the Quakers from their own 
conviction that such a course would cause a great sacrifice of 
life, and would finally fail of accomplishing their object; or 
whether, thirsting for blood still, they were stopped by a " man- 
damus" from Charles II., — who, by the way, had no power 
to issue such a judicial writ, even if he might amend the 
charter. 

It may not be amiss, therefore, to state, that the last exe- 
cution, that of William Leddra, took place March 14, 1661 ; that 
Wenlock Christison, or, as the record has it, Wendlock Christo- 
pherson, who had been banished and threatened with death if he 
should return, confronting the judges on Leddra's trial with, " I 
am come here to warn you, that you shed no more innocent 
blood," was arrested, and, after three months, brought up for 
trial. Dr. Palfrey says, — , 



80 CHAETER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

" There was an unprecedented division among the magistrates, and 
they are said to have been no less than two weeks in debate." — " Chris- 
tison was condemned to die ; but the dreadful sentence could not again be 
executed. In the mean time, the General Court had met ; and the evi- 
dences of opposition to any further pursuance of this rigorous policy were 
unmistakable. The contest of will was at an end. The trial that was 
to decide which party would hold out longest, had been made ; and the 
Quakers had conquered." ^ 

It may be proper for me to add, that Christison, concluding 
that, if he might have his liberty, he had freedom to depart, was 
discharged from prison in June, 1661 ; that King Charles's letter, 
directing "that, if there were any of those people called Quakers 
amongst them, now already condemned to suffer death or other 
corporal punishment, or that were imprisoned and obnoxious to 
the like condemnation, they were to forbear to proceed any 
further therein," and should send such persons to England for 
trial, was dated Sept. 9th, of that year, and received in Novem- 
ber. Dr. Palfrey says further : — 

"The command, however, produced little effect. The resolution to 
abstain from further capital punishments had been taken some months 
before ; though the magistrates perhaps were not indisposed to appeal to 
the King's injunction, rather than avow a change of .judgment on their 
own part." ^ 

And it is of some importance to know farther, that, after a 
representation from the government of the colony to the King 
on this subject, his Majesty, in a letter dated June 28th, 1662, 
after saying, that " the end and foundation of the charter was 
and is the freedom and liberty of conscience," and charging and 
requiring that freedom and liberty be duly admitted and allowed, 
so that the " Book of Common Prayer " might be used, and all 
persons of good and honest lives and conversations be admitted 
to the sacraments and their children to baptism, adds, — 

" We cannot be understood hereby to direct or wish that any indul- 
gence should be granted to those persons commonly called Quakers, 
whose being inconsistent with any kind of government. We have 

found it necessary, by the advice of our Parliament here, to make sharp 
laws against them, and are well contented that you do the like there." 

1 Palfrey, vol. ii. p. 481. 2 Palfrey, vol. ii. pp. 519, 520. 



CHARTER AND RELIGIOUS LEGISLATION OP MASSACHUSETTS. 81 

This is the King's final judgment on the matter.^ 
A few days since, a leading newspaper in a neighboring State 
appended to a courteous notice of this course of Lectures, a very 
uncourteous paragraph respecting the founders of Massachusetts, 
saying, that — 

" They were simply a band of narrow-minded sectaries, animated by no 
broad nor generous motives ; but aiming to establish a morose and ex- 
clusive community, from which every one of broader sympathy and more 
tolerant spirit should be rigorously shut out." 

And then, naming three of the principal men among them, it 
was said, — 

" that, so far from being the promoters of a great movement, they prove, 
on examination, of very moderate calibre. They were designed for 
village deacons, rather than for founders of states." 

One cannot, and has no disposition to, repress a smile at lan- 
guage like this. 

It is neither my duty nor my privilege, at this time, to enter 
into a discussion respecting the statesmanship of the founders 
of Massachusetts. But it lies within my province to say here 
and now, that, but for the religious legislation of the founders 
of Massachusetts, many persons would have come here, who, 
like some of those who went to Rhode Island, were not fit for 
village deacons, nor for any other honest and honorable posi- 
tion. 

A clerical friend of mine, in a sermon last Thanksgiving Day, 
referring to the Puritan Commonwealth and the disturbances 
by Roger Williams and others, happily remarked, that " every 
Utopia ought to be supplemented with a Narragansett." 

Their experiment of founding and maintaining a civil state 
upon a basis which should support the worship of God according 
to the dictates of their conscientious convictions of duty, and an 
ecclesiastical state combined which should be in harmony with 
it, and of excluding whatever was antagonistic to its welfare, 
failed in its exclusiveness ; but the change was only in the 
admission of the element of a more extended liberty of con- 
science; and of what is dignified by that name without its 

1 Mass. Records, vol. iv. part ii. p. 165; Hutch. Coll. Papers, p. 379. 

6 



82 CHAKTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

vitality ; with greater liberty also of action. Their failure was 
partial only ; their success, great and enduring. 

With an intelligent apjDreciation of its true principles, they 
laid here the foundation of civil liberty upheld by law and 
restrained by law, and of a system of impartial justice. 

In the " Body of the Liberties," enacted in 1641, is a prefa- 
tory declaration, that — 

" We do, therefore, this day, religiously and unanimously, decree and 
confirm these following Rights, liberties, and privileges, concerning our 
Churches, and Civil Stale, to be respectively, impartially, and inviolably 
enjoyed and observed throughout our jurisdiction for ever." 

The first and second declarations following this, are, of them- 
selves, a Massachusetts Magna Charta. 

" 1. No man's life shall be taken away, no man's honor or good name 
shall be stained, no man's person shall be arrested, restrained, banished, 
dismembered, nor any ways punished, no man shall be deprived of his 
vpife or children, no man's goods or estate shall be taken away fi-om him, 
nor any way indamaged under color of law or Countenance of Authority, 
unless it be by virtue or equity of some express law of the Country war- 
ranting the same, established by a General Court and sufficiently published, 
or in case of the defect of a law in any particular case, by the word of 
God. And in Capital cases, or in cases concerning dismembering or 
banishment according to that word to be judged by the General Court." 

" 2. Every person within this jurisdiction, whether Inhabitant or 
foreigner, shall enjoy the same justice and law that is general for the 
plantation, which we constitute and execute one towards another, without 
partiality or delay." ^ 

The main principle of these declarations is recognized in the 
constitutions of the States, and of the United States. If it shall 
be abandoned, and the theory substituted that the general govern- 
ment is to be administered according to the will of the people, 
as ascertained, from time to time, by the action of Congress, civil 
liberty in the United States will receive a shock, from which it 
will never recover under that government. 

With a profound conviction of the truth and of the vital im- 
portance of their religious principles, they achieved and secured 
to themselves liberty to worship God according to the dictates 

1 Mass. Hist. Society's Coll. 3d Series, vol. viii. p. 216. 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS, 83 

of their consciences. They disclaimed again and again power 
over the faith and consciences of others. If they were perti- 
nacious in their determination that those who could not join at 
least in attendance upon their religions worship, and especially 
that those who placed themselves in hostility to their principles 
and practice, should find their liberty elsewhere, — their efforts 
to secure liberty for themselves have resulted in a larger liberty to 
all others. 

With the rod of a persevering industry, they smote the rock 
of Massachusetts, literally lying in the wilderness ; and if the 
elements of prosperity existing within did not gush forth in im- 
mediate profusion, they have since flowed in copious streams to 
sustain and enrich their descendants. 

Let not the conclusion that the Puritans founded their State 
in order that they might worship God according to the dictates 
of their own consciences, without admitting others to disturb 
their worship by contention about doctrines and ordinances, de- 
tract from the high estimation in which they have been held, 
heretofore. 

Let us not even presume to believe that they would have 
effected a better work, had they attempted to provide entire 
liberty for what every man, woman, and child deemed the dictates 
of their several consciences. 

We are not authorized to say that it would have been better 
if they had founded a colony on the shores of Massachusetts, 
with what we call liberty of conscience, — liberty for every one 
not only to think as he pleases, which the Puritans allowed, 
but liberty for every one to preach, and harangue, and vituperate, 
and denounce every other one who differs and dissents from his 
or her particular notion, — liberty to women to hold conventions, 
and make pretty invectives against government, and liberty to 
others to denounce the Constitution which is, or should be, the 
organic law. All this is supposed to be safe for us. Would it 
have been safe for them ? On what premises shall we maintain 
such a position ? Nay, upon what data shall we persuade our- 
selves that, forming their infant settlement upon such a foun- 
dation, their Patmos would not have been turned into a Pan- 
demonium, — that their experiment would not have proved a 
disastrous failure in its very inception? 



84 CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 

Above all, let us not stultify ourselves by the superlative 
folly of regarding the Puritans as "a band of narrow-minded 
sectaries, animated by no broad nor generous motives," who 
aimed " to establish a morose and exclusive community, from 
which every one of broader sympathy and more tolerant spirit 
should be rigorously shut out." Exclusion of the promoters of 
contention is not the exclusion of persons of the broadest sym- 
pathy and the widest toleration. 

Let us have a correct understanding of what the Puritans were 
in their day, which will lead us to very different conclusions. 

They were non-conformists. It was their non-conformity, 
religious and civil, which brought them hither, to establish the 
principles of their non-conformity, in a colony to be based on the 
very foundations of their non-conformity. 

Thirty years after the death of John Wycliffe, the Council of 
Constance condemned his opinions and writings; and decreed 
that his memory should be pronounced infamous, and that his 
bones, if to be distinguished from those of the faithful, should be 
removed from the consecrated ground, and cast upon a dunghill. 
Thirteen years subsequently, in pursuance of this sentence, his 
remains were taken from their place and burned ; and the ashes 
were cast into the Swift, a brook which empties itself into the 
Avon. 

" The Avon to the Severn runs, 
The Severn to the sea, 
And Wycliffe's dust shall spread abroad. 
Wide as the waters be." 

Many of you recollect those beautiful lines. You know who 
repeated them, with a reference to the blood of Kossuth, if it 
should be shed by the Emperor of Russia. 

Who was John Wycliffe ? A non-conformist, — " The morning 
star of the Reformation," — the original and type of the non- 
conformists who, denying the supremacy of King and bishops, 
as he denied that of the Pope, kindled the spark of civil and 
religious liberty in England ; who cherished and fostered it is 
the wilderness, until, increasing and extending its beneficent 
warmth, it shot forth such a light, that the fires of persecution 
paled before its radiance. 

Sneers about village deacons cannot tarnish the reputation of 



CHARTER AND RELIGIOUS LEGISLATION OF MASSACHUSETTS. 85 

such men. Detractors may think to cast their dust upon the 
waters ; but, like that of WyclifFe, it " shall spread abroad, wide 
as the waters be." 

If the liberty which they claimed and secured, was, in their 
day, confined in a great measure to themselves and their institu- 
tions ; after generations have had the benefit of an expansion 
of its principles into a more extended freedom. 

We may reject their creed. We may regret their austerity. 
But they will live in history, as they have lived, the very embodi- 
ment of a noble devotion to the principles which induced them 
to establish a colony, to be " so religiously, peaceably, and civilly 
governed," as thereby to incite the very heathen to embrace the 
principles of Christianity. 



v^^ 



THE FIRST CHARTER 



THE EARLY RELIGIOUS LEGISLATION 



OF MASSACHUSETTS. 



By JOEL PxiRKER. 






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